Partly allowed

Md. Lateef and 4 Others v. State of U.P. and Another

Allahabad HC23 May 2023CRLA/2950/2023

Case brief

AI extract

What is this about?

On criminal appeal, the court affirmed the summoning of male appellants but modified the order to exclude women appellants from charges under Section 354-B I.P.C., holding the offence may not attract to them. Directions were issued for expedited bail disposal.

What did the court decide?

Summoning order affirmed for male appellants; modified to exclude women appellants from Section 354-B I.P.C. charge; directions for bail disposal within 20 days.

Md. Lateef and 4 Others Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:113373

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Court No. - 81

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Case :- CRIMINAL APPEAL No. - 2950 of 2023

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Appellant :- Md. Lateef And 4 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Aditya Vardhan Singh Counsel for Respondent :- G.A.

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Hon'ble Mohd. Faiz Alam Khan,J.

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Heard Shri Aditya Vardhan Singh, learned counsel for the appellants 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, Md. Lateef, Md. Mustafa, Md. Idrish, Nafisa and Shamim Bano with the prayer to set aside the entire proceeding of Special Sessions Trial (Kusma Vs Md. Lateef and others), arising out of Case Crime No.83 of 2016, under Sections 147, 354-B, 323, 504, 506 I.P.C. & 3(1)(X) of the S.C./S.T. Act, Police Station Karvi, District Chitrakoot including the summoning and cognizance order dated 19.01.2023 passed therein.

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Learned counsel for the appellants while drawing attention of this Court towards the impugned order dated 19.01.2023 passed by the special court and the Final Report submitted by the investigating officer after investigation (which is available on record) vehemently submits that the special court committed manifest illegality in passing the impugned order, whereby the appellants have been summoned to face trial for committing offence under Sections 147, 354-B, 323, 504, 506 I.P.C. & 3(1)(X) of the S.C./S.T. Act as there was no sufficient material available on record.

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It is further submitted that after thorough investigation a Closure Report/Final Report was submitted by the investigating officer, however, the special court without collecting any other evidence, only on the material collected by the investigating officer (on the basis of Closure Report/Final Report was submitted) has summoned the appellants by taking cognizance under Section 190(1)(b) Cr.P.C.

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It is also submitted that the special court has not considered this aspect of the matter and even if the case of the prosecution is taken on its face, the injuries as claimed to have been sustained by the informant and injured may not be inflicted as the assault is shown to have been made on the person of the informant by hasiya, which is a sharp-edged weapon and the injuries, which have been sustained by the informant, is shown to have been caused by a hard and blunt object, thus there is material contradictions in oral and medical evidence and this aspect of the matter has not been considered by the special court.

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It is also submitted that even on the basis of admitted prosecution case, the provision of Section 3(1)(X) of the S.C./S.T. Act would not be applicable, thus impugned order dated 19.01.2023 is bad in law and the same is liable to be set aside

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Learned A.G.A. on the other hand supported the impugned order.

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Having regard to the order intended to be passed, the issuance of notice upon respondent no.2 is hereby dispensed with.

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Having heard learned counsel for the parties and having perused the record, it is evident that on the basis of F.I.R. lodged by the first informant namely Kusma the investigation started and after investigation Final Report/Closure Report was submitted apparently on the ground that with regard to the same incident, a complaint case was earlier filed from the side of the informant and there is no logic for prosecuting the accused persons twice for the same offence and also the allegations as levelled in the F.I.R. have not been found truthful. On a protest petition filed by the informant, the special court has passed the impugned order taking cognizance apparently under Section 190(1)(b) Cr.P.C. and summoning the appellants to face trial under relevant provisions of I.P.C. and S.C./S.T. Act.

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Perusal of the summoning order would reveal that special court while passing impugned order has taken into consideration the reports pertaining to the injuries sustained by two injured persons namely informant Kusma and one Anita. Prima facie these injuries though are of lacerated nature, but may be inflicted by the use of hasiya moreover whenever there is a contradiction between oral and medical evidence, the same is to be considered in broad spectrum as highlighted by the Supreme Court in Thaman Kumar Vs. State of Union Territory of Chandigarh. [(2003) 6 SCC 380 . Relevant portion of the same is produced as under:

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"The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony. "

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Thus the contradiction between oral and medical evidence may be considered at an appropriate stage by the special court as at the stage of summoning only a prima facie case is required to be seen.

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So far as the applicability of the S.C./S.T. Act is concerned, the appellants have been summoned to face trial under Section 3(1)(X) of the S.C./S.T. Act. The incident is shown to have occurred on 17.10.2015 and the relevant amendments in the S.C./S.T. Act have been incorporated in the year 2016 by which the nomenclature of the offence has been changed and before 2016 (before amendment) Section 3(1)(X) of the S.C./S.T. Act was pertaining to intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view and in the considered opinion of this Court there appears to be sufficient material for the invocation of this Section, thus I do not find any force in the submissions of learned counsel for the appellants with regard to the fact that provision of S.C./S.T. Act would not be applicable.

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However, it is reflected that special court while passing impugned order of date 19.01.2023 has summoned the ladies also pertaining to the offence committing under Section 354-B I.P.C., however, the incident appears to have occurred in the spur of moment. Thus in the considered opinion of this Court, this aspect of the matter is required to be reconsidered by this Court and as the offence of 354-B I.P.C. may not be invoked against ladies, the summoning order is required to be modified with regard to the ladies appellant/accused persons.

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Thus for the reasons aforesaid, I do not find any illegality so far as the summoning of the appellants namely Md. Lateef, Md. Mustafa, Md. Idrish with regard to the offences, wherein they have been summoned and thus summoning order is affirmed with regard to these appellants.

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So far as the ladies, appellant no.4 Nafisa and appellant no.5 Shamim Bano are concerned, in the considered opinion of this Court, having regard to the allegations levelled in the statements recorded under Section 161 Cr.P.C., the provision of Section 354-B I.P.C. may not be attracted against them. Thus the instant appeal is partly allowed and it is provided that the summoning order passed by the appellate court so far as with regard to the appellants namely Md. Lateef, Md. Mustafa, Md. Idrish is concerned, is affirmed and pertaining to the appellant no.4 Nafisa and appellant no.5 Shamim Bano is modified to the tune that now the appellant no.4 Nafisa and appellant no.5 Shamim Bano shall stand summoned for committing offence under Sections 147, 323, 504, 506 I.P.C. & 3(1)(X) of the S.C./S.T. Act.

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At this stage, learned counsel for the appellants submits that the appellants have cooperated in the investigation and all the offences, wherein they have been summoned, are punishable with upto 7 years of imprisonment, thus appropriate directions be given to the trial court with regard to the expeditious disposal of their bail application, which they are intending to move before the trial court, in view of the law laid down by Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773.

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Perusal of the record would reveal that after investigation Closure Report/Final Report has been submitted and there is nothing on record, which may suggest that the appellants have not cooperated in the investigation, thus it is provided that if the appellants appear/surrender before the trial court within 20 days from today and move application for regular bail under Sections 437/439 Cr.P.C., the trial court shall dispose of the same after providing opportunity of hearing to the parties, strictly in accordance with law laid down by Hon'ble Supreme Court in Satender Kumar Antil (supra) with utmost expedition.

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If the respondent no.2 feels aggrieved by this order, she/he may approach this Court by moving an appropriate application.

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Order Date :- 23.5.2023 Anupam S/-

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Digitally signed by :- ANUPAM SINGH PATEL High Court of Judicature at Allahabad

Md. Lateef and 4 Others v. State of U.P. and Another

Case brief

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Md. Lateef and 4 Others v. State of U.P. and Another

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