Allowed

Asharam and 5 Others v. State of U.P. and Another

Allahabad HC17 Aug 2023CRLA/6295/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed an appeal against a summoning order in a case under the SC/ST Act. The court held the complaint to be a malicious prosecution filed in retaliation against the appellant, as it was evident from prior Section 145 proceedings initiated by the appellant regarding a land dispute.

What did the court decide?

The impugned order dated 10.04.2023 summoning the appellants was set aside, and the complaint by the complainant is dismissed as malicious prosecution.

Asharam and 5 Others Vs State of U.P. and Another — Caste Atrocities | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:165782

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Court No. - 84

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Case :- CRIMINAL APPEAL No. - 6295 of 2023

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Appellant :- Asharam And 5 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Rakesh Kumar Pandey,Ashish Kumar Counsel for Respondent :- G.A.

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Hon'ble Mrs. Sadhna Rani (Thakur),J.

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Heard learned counsel for the appellants, learned A.G.A. and perused the record.

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No one has put in appearance on behalf of opposite party no.2 despite of sufficient service.

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The present appeal has been filed against summoning order dated 10.04.2023 passed by the Special Judge (S.C./S.T. Act)/ Additional District and Sessions Judge, Lalitpur in Criminal Misc. Case No.91 of 2022 (Smt. Prembai Vs. Asharam and others), under Sections 323/ 34, 504 I.P.C. and Section 3(1) (Da), (Dha) of S.C./S.T. Act, 1989, Police Station Mahrauni, District Lalitpur.

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By impugned order, the appellants have been summoned to face trial under Sections 323/ 34, 504 I.P.C. and Section 3(1) (Da), (Dha) of S.C./S.T. Act.

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It is argued by the learned counsel for the appellants that as per complaint dated 10.02.2022 the incident is dated 05.02.2022 at 6:00 p.m. In support of the statement of the complainant/ opposite party no.2 under Section 200 Cr.P.C. her daughter-in-law has appeared as PW-1 and son Sanjay has been produced as PW-2 before the trial court. In fact, as per the order of S.D.M., Mahrauni on the application of appellant no.3 Dwarika Prasad proceedings under Section 145(1) Cr.P.C. were initiated against Ranjit, Naresh and Sanjay, all sons of Kallu and opposite party no.2. As per order of S.D.M. concerned as both the parties were claiming rights over the disputed land, there was probability of breach of peace on the spot and, hence, notices were issued to the opposite parties for date 27.12.2021. This order is dated 03.12.2021 much before the filing of complaint by the opposite party no.2.

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The attention of the Court is drawn towards the application dated

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10.02.2022, whereby appellant no.1 Asharam had moved an application before the Superintendent of Police, Lalitpur that he is having dispute with Ranjit, Naresh and Sanjay, sons of Kallu and Smt. Prembai, the wife of Kallu, the opposite party no.2 regarding possession of land over Gata No.696 measuring 0.667 hectares. As the proceedings under Section 145 (1) Cr.P.C. is pending against the sons of opposite party no.2 because of this enmity the opposite party no.2 and his sons are giving threat of implicating the appellants in false cases of SC/ST Act. It is submitted that the civil suit filed by the son of complainant/ opposite party no.2 was dismissed on 11.05.2022 and the proceedings under Section 145 (1) Cr.P.C. have been initiated against the sons of opposite party no.2 on the application of the appellant no.1 and because of this enmity the present complaint has been filed by the opposite party no.2 on totally false allegations, hence, the prayer is made to set aside the summoning order dated 10.04.2023.

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Learned A.G.A., however, opposed the prayer and submitted that on the basis of statement of the victim/ complainant under Section 200 Cr.P.C. and the statements of the witnesses under Section 202 Cr.P.C. the trial court has rightly summoned the appellants to face trial under the abovementioned sections.

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No one has put in appearance for opposite party no.2 to oppose this appeal.

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If we go through the complaint there is an allegation that in the Pradhan Mantri Awas Yojana the daughter-in-law of the complainant was collecting building materials for construction on the spot. All the appellants are said to have hurled abuses and caste based words with the version that how the scheduled caste and scheduled tribe persons could make house in the locality where the appellants are residing. The appellants are said to have thrashed the opposite party no.2, her son and daughter-in-law, who are said to have witnessed the incident and rescued her. There is allegation that next day the appellants came again and robbed two quintal iron rod and 14 sacks of cement of the daughter-in-law of the opposite party no.2. No independent witness has been produced in support of the statement of the opposite party no.2/ complainant under Section 200 Cr.P.C. Her daughter-in-law and son have appeared before the trial court as PW-1 and PW-2. In the statement of the complainant under Section 200 Cr.P.C. there is version that there was no previous dispute of the complainant with the appellants. While the documents on record show that on the application of appellant no.3 Dwarika Prasad, the proceedings under Section 145(1) Cr.P.C. was initiated against three sons of the

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opposite party no.2. Again, there is document that the Civil Court Case No. 11 of 2022 filed by the son of the opposite party no.2 was dismissed on 11.05.2022 in non-prosecution. Again, there is an application appended at page- 45 of the paper book dated 10.02.2022 the same date when the complaint is said to have been filed by the opposite party no.2 that because of the proceedings under Section 145(1) Cr.P.C. the opposite party no.2 and her sons and husband were giving threat of implicating the appellants in the false case of SC/ST Act. Thus, it is clear that prior to the filing of the present complaint the proceedings regarding illegal encroachment by three sons of opposite party no.2 before the S.D.M. concerned were pending, wherein notices were issued to them under Section 145 (1) Cr.P.C. on the application of appellant no.3 Dwarika Prasad. Again an application has been moved by the appellant no.1 Asharam showing an apprehension of threat of being implicated in false case of SC/ST Act. No independent witness has been produced to support the version of the complaint before the trial court. Thus, it appears that because of the proceedings initiated by the appellants under Section 145(1) Cr.P.C. against the sons of the opposite party no.2, in the counterblast the present complaint has been filed by the opposite party no.2 misusing the provisions of SC/ST Act. At the time of passing impugned order the documents of previous proceedings were not produced before the trial court rather a false statement was given there by the complainant that no prior dispute exists between the parties.

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Hence, in the opinion of the Court, the appeal deserves to be allowed.

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The appeal is allowed . The impugned order dated 10.04.2023 passed by the Special Judge (S.C./S.T. Act)/ Additional District and Sessions Judge, Lalitpur is set aside and the complaint of the complainant/ opposite party no.2 is dismissed being a malicious prosecution.

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Order Date :- 17.8.2023 Radhika

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Digitally signed by :- RADHIKA VISHWAKARMA High Court of Judicature at Allahabad

Asharam and 5 Others v. State of U.P. and Another

Case brief

What is this about?

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Asharam and 5 Others v. State of U.P. and Another

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