Allowed

Muktamani Dubey and Another v. State of U.P. and Another

Allahabad HC22 May 2023CRLA/2169/2023

Case brief

AI extract

What is this about?

The Allahabad High Court rejected the appellants' prayer to quash the charge sheet and summoning order in an SC/ST Act case, holding that the police report provided sufficient grounds to proceed under Section 190(1)(b) of CrPC. However, the appeal was disposed of, directing the trial court to decide bail applications expeditiously if appellants surrender.

What did the court decide?

Appeal allowed/quashed, but prayer to quash charge sheet refused. Appeal disposed with direction to lower court to decide bail expeditiously if appellants surrender within 30 days.

Muktamani Dubey and Another Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:112543

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Court No. - 81

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Case :- CRIMINAL APPEAL No. - 2169 of 2023

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Appellant :- Muktamani Dubey And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Parbind Kumar Tiwari Counsel for Respondent :- G.A.,Mani Yagyesh Tripathi,Prashant Kumar Pathak

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Hon'ble Mohd. Faiz Alam Khan,J.

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Heard Shri Parbind Kumar Tiwari, learned counsel for the appellants and Shri Mani Yagyesh Tripathi, learned cousnel for opposite party no.2 as well as learned A.G.A. for the State and perused the record.

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The instant Criminal Appeal under Section 14-A(1) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been moved by the appellants, namely, Muktamani Dubey and Gyanendra Dubey @ Guddu Dubey with the prayer to allow the instant criminal appeal and set aside the impugned charge sheet dated 17.09.2022 as well as impugned cognizance order dated 10.01.2023, passed by learned Court of Special Judge SC/ST Act, Jaunpur, in Special Session Trial No. 16 of 2023 (State Vs. Muktamani and another), arising out of Case Crime No. 73 of 2022, under Sections 323, 504, 506, 406 IPC and Section 3(2) 5A SC/ST Act, Police Station Pawara, District Jaunpur.

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Learned counsel for the appellants has made many factual submissions to demonstrate that the FIR was lodged on false and concocted facts just to pressurize and harass the appellants and the Investigating Officer without going deep into the matter in a cursory manner has submitted the charge sheet, and the court below has taken cognizance without considering the matter in right perspective and, therefore, the charge sheet, the order of the Magistrate, whereby the cognizance has been taken and process is issued are bad in law and the same be quashed.

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It is further submitted that the FIR of the incident has been lodged with a delay of 45 days and no explanation of such delay has been given either in the FIR or in the statement of the informant and his witnesses and the injury report of the informant is also of 27.07.2022, while the incident is shown to have occurred on 12.06.2022.

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Learned A.G.A. while controverting the arguments of the learned counsel for appellants submits that, the arguments of the learned counsel for appellants is, with regard to the factual aspects of the case which cannot be appreciated at this stage, as only a primafacie case is required to be seen at the stage of taking of cognizance and issuance of process.

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Learned counsel for opposite party no.2 submits that no illegality or to say any irregularity has been committed by the Investigating Officer in submitting the charge sheet or by special court in taking cognizance of the offences and summoning the the appellants to face trial.

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From the cursory perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against appellants. All the submissions made at the bar, relate to the disputed questions of fact, which cannot be appreciated by this Court as at this stage only a primafacie case is to be seen in the light of the law laid down by the Hon'ble Apex court in AIR 2012 SUPREME COURT 1747, Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr, AIR 2015 SUPREME COURT 923 , Sunil Bharti Mittal v. Central Bureau of Investigation , in Kishun Singh and Ors. v. State of Bihar MANU/SC/0460/1993 : (1993) 2 SCC 16 , State of W.B. and Anr. v. Mohd. Khalid and Ors . MANU/SC/0154/1995 : (1995) 1 SCC 684 , in S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors . MANU/SC/7011/2008 : (2008) 2 SCC 492 , in M/s. India Carat Pvt. Ltd. Vs. State of Karnataka MANU/SC/0349/1989 : 1989(26) ACC 280 (SC) , in Minu Kumari and another Vs. State of Bihar and others MANU/SC/8098/2006 : 2006 (4) SCC 359 , in the case of Nupur Talwar vs C.B.I. reported in 2013 AIR SCW 369 and State of Gujrat Vs Afroz Mohammed Hasanfatta reported in MANU/SC/0139/2019 .

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Perusal of the FIR would reveal that specific allegations of assault, misappropriation of money by appellants, intimidation and of abusing and addressing the victim with the castiest remarks have been alleged. The informant and her husband has stated the same story in their statement recorded by Investigating Officer under Section 161 Cr.P.C. Dr. Ramesh Kumar stated to have examined the complainant and also that injury of complaint of pain was told to her by complainant/ informant on 27.07.2022. The incident has occurred on 12.06.2022, and FIR of the same could only be lodged on 27.07.2022 and it is also reflected that on the day of lodging of

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FIR the informant was sent in police custody for medical examination by the local police. Thus the medical report is not of much significance. The allegations of the FIR have been investigated by a Senior Officer of the Police and from the statements of victim and witnesses commission of offences, wherein appellants have been summoned, is reflected.

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Hon'ble Supreme Court in State of Gujrat Vs Afroz Mohammed Hasanfatta reported in 2019 SCC online SC 132 while considering the obligation of magistrate at the time of issuance of summons to the accused persons while taking cognizance of offences on a police report submitted under section 173 of the Code Of Criminal procedure, formulated following point and answered it as under :-

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" While taking cognizance of an offence under Section 190(1) (b) Cr.P.C., whether the court has to record reasons for its satisfaction of sufficient grounds for issuance of summons:

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20. . In para (21) of Mehmood Ali Rehman, this Court has made a fine distinction between taking cognizance based upon charge sheet filed by the police under Section 190(1)(b) Cr.P.C. and a private complaint under Section 190(1)(a) Cr.P.C. and held as under:-

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"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."

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21 . In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding?.."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming 16 that the accused has committed an offence?..". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and

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demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.

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22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file."

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Section 190, which deals with taking cognizance of offences by Magistrate, sets out that any Magistrate of the first Class and any Magistrate of the second class specially empowered, as contemplated, may take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence or (b) upon a police report of such facts or upon information received from any person other than the police officer, or (c) upon his own knowledge that such offence had been committed. Instant case is related to section 190 (b) i.e. police report. The word 'may' occurred in section 190 imports the exercise of judicial discretion and the Magistrate receiving

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the report under Section 173 would have to consider the report and decide judicially whether or not to take cognizance of the offence and as discussed earlier where the report states that, according to the police, no offence appears to have been committed the Magistrate has option of adopting one of the three courses open to him i.e., (1) he may accept the report and drop the proceeding( in this case he will have to inform victim/ informant ); or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3).

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However, where the police report concludes that an offence appears to have been committed by particular person or persons and in such a case, he may (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding( in this case he will have to inform victim/ informant ), or (3) before taking offence may direct further investigation under Section 156(3) and require the police to make a further report. If after taking into consideration material placed with the 'Charge Sheet' there is sufficient ground for proceeding against the persons named in the Charge Sheet the processes may be issued against them under Section 204 Cr.P.C. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for the conviction. The court is not required to evaluate the evidence and its merits. At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. As propounded by Supreme Court in State of Gujrat Vs Afroz Mohammed Hasanfatta (supra), the fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C. In cases instituted on a police report, the Magistrate is required to pass an order of issuing summons to the accused on the basis of his subjective satisfaction considering the police report and other documents and after satisfying himself that there is sufficient ground for proceeding against the accused.

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Therefore, keeping in view the facts and circumstances of the case, and the law placed above, I do not find any good ground on the basis of which summoning order may be quashed, thus, the prayer for quashing the Charge-sheet, summoning order as well as all proceedings of the aforesaid case is hereby refused.

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Hon'ble Apex Court in Hussain and Ors. Vs. Union of India (UOI) and Ors. reported in MANU/SC/0274/2017, In Re: To issue certain Guidelines Regarding inadequacies and deficiencies in Criminal Trials v. State of Andhra Pradesh and others, MANU/SC/0292/2021 have given various directions to criminal Courts for expeditious disposal of Bail applications. The ratio of above mentioned decisions is quite clear that, in the backdrop of Article 21 of the Constitution of India as the personal liberty of a person is at stake, the bail applications should be decided, expeditiously.

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Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 has issued various guidelines and provided a scheme with regard to the cases where the Charge Sheet has been filed without arrest of the accused person(s) during investigation and accused person(s) have Cooperated throughout in the investigation including appearing before the Investigating Officer whenever called. Apex Court has also provided special procedure with regard to such cases where the charge sheet has been submitted under offences punishable with up to seven years of imprisonment. The law laid down by the Hon'ble Supreme Court in S.K. Antil (supra) has been reiterated in Aman Preet Singh Vs. C.B.I. through Directo r : 2021 SCC OnLine SC 94.

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In the backdrop of aforesaid decisions and keeping in view the entirety of facts and circumstances of the case and having regard to the request of learned counsel for the appellants, the appeal is disposed of with direction to the trial Court that if the appellants appear and surrender before the Court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided expeditiously by the Court below strictly in accordance with the law referred to herein above

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The Special Court while considering the plea of bail of the appellants shall pay due regard to the submission which has been advanced before this Court with considerable force that the FIR of the instant case has been lodged with the delay of 45 days.

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Order Date :- 22.5.2023 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad

Muktamani Dubey and Another v. State of U.P. and Another

Case brief

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Muktamani Dubey and Another v. State of U.P. and Another

Case brief

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