Partly allowed¶12

Pardeshiya @ Pardesilal and 4 Others v. State of U.P. and Another

Allahabad HC23 Aug 2023CRLA/7091/2023

Case brief

AI extract

What is this about?

Allahabad HC 2023:AHC:169958; CRL APPEAL 7091/2023, decided 23.8.2023, Sadhna Rani (Thakur) J. Partly allowed. Summoning under Ss.323/504/506 IPC upheld; SC/ST Act S.3(2)5A charge set aside qua Scheduled Caste accused (appellant no.5). Cross-FIRs, same incident 22.6.2016; protest petition treated as complaint; Ss.156(3)/200/202 Cr.P.C.; aggressor question left to trial; Banda.

What did the court decide?

Appeal partly allowed: the order dated 6.4.2023 is set aside only to the extent of summoning appellant no. 5 under the SC/ST Act; the rest of the trial court's order is confirmed. ¶12

Pardeshiya @ Pardesilal and 4 Others Vs State of U.P. and Another — Allahabad HC (2023) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal partly allowed: the order dated 6.4.2023 is set aside only to the extent of summoning appellant no. 5 under the SC/ST Act; the rest of the trial court's order is confirmed.

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Issue for consideration

Whether the summoning order dated 6.4.2023 passed by the Additional Sessions Judge/Special Judge (SC/ST Act), Banda, summoning the appellants to face trial under sections 323, 504, 506 I.P.C. and section 3(2)5A of SC/ST Act, calls for interference in this appeal. +1 more

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Court's answer

The impugned order dated 6.4.2023, passed on the basis of the statements of the complainant and the witnesses, needs no interference.

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Ratio / Principle

The order dated 6.4.2023 is set aside only to the extent of summoning appellant no. 5 under the SC/ST Act; the rest of the trial court's order is confirmed.

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Key takeaways

No offence under the SC/ST Act is made out against appellant no. 5, it being unopposed that he belongs to the Scheduled Castes category.ratio¶11
Who was the aggressor and who the defender in the incident shall be decided by the evidence in the trial court; the merits of the dispute are to be decided by evidence.obiter¶11
Since the incident dated 22.6.2016 is admitted by both parties, the belated lodging of the FIR by opposite party no. 2 makes no difference at this stage.

Detailed headnote1 paragraphs

Allahabad High Court (Sadhna Rani (Thakur), J.), Criminal Appeal No. 7091 of 2023, decided 23.8.2023 (Neutral Citation 2023:AHC:169958): Appeal against summoning order dated 6.4.2023 of the Additional Sessions Judge/Special Judge (SC/ST Act), Banda, in Special Criminal Case No. 149 of 2028, summoning five appellants under sections 323, 504, 506 I.P.C. and section 3(2)5A of SC/ST Act. The case arose from cross-version FIRs over the same incident dated 22.6.2016: the complainant (opposite party no. 2) moved an application under section 156(3) Cr.P.C. leading to an FIR dated 20.12.2016 and a final report dated 22.1.2017, whereafter his protest petition was treated as a complaint and statements under sections 200 and 202 Cr.P.C. were recorded; appellant no. 1 had earlier lodged FIR case crime no. 142 of 2016 on 23.6.2016. Held: the impugned order needs no interference; the belated FIR is immaterial as the incident is admitted, and the question of aggressor is left to trial evidence. However, no offence under the SC/ST Act is made out against appellant no. 5, who himself belongs to the Scheduled Castes community; the order is set aside only to that extent and the remainder is confirmed. Appeal partly allowed.

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Neutral Citation No. - 2023:AHC:169958

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Court No. - 84

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Case :- CRIMINAL APPEAL No. - 7091 of 2023 Appellant :- Pardeshiya @ Pardesilal And 4 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Ramesh Prasad,C P Kushwaha 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 counsel for the opp. party no. 2 and perused the record.

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Counter affidavit filed on behalf of the opp. party no. 2 and rejoinder affidavit filed on behalf of the appellants are taken on record.

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This appeal has been preferred against the order dated 6.4.2023 passed by Additional Sessions Judge/ Special Judge SC/ST Act, Banda in special criminal case no. 149 of 2028, whereby the appellants have been summoned to face trial under sections 323, 504, 506 I.P.C. and section 3(2)5A of SC/ST Act, police station Bisanda District Banda.

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It is argued by the learned counsel for the appellants that in the present case regarding the incident dated 22.6.2016 an application under section 156(3) Cr.P.C. dated 8.9.2016 was moved by opp. party no. 2. On the basis of this application, the first information report was lodged against the appellants on 20.12.2016. After investigation, final report was submitted by the Investigating Officer on 22.1.2017. Aggrieved by the final report submitted by the Investigating Officer, the opp. party no. 2 filed a protest petition before the trial court which was treated as a complaint. After recording the statements of the complainant under section 200 Cr.P.C. and his witnesses under section 202 Cr.P.C. respectively, the trial court summoned the appellants to face trial under the aforesaid sections. It is submitted by the learned counsel for the appellants that there is allegation of thrashing the first informant with kicks and fists but no medical report has been filed in the complaint. Apart from complainant, witnesses Chunnu and Ram Kishor have been produced in the court. Witness Chunnu is the son of complainant Motilal and Ram Kishor is his relative. The appellant no. 5 also belongs to Scheduled castes community, so offence under SC/ST Act cannot be said to be made out against him.

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In fact regarding the same incident dated 22.6.2016, appellant no. 1 Pardeshiya lodged an FIR on 23.6.2016 as case crime no. 142 of 2016 alleging therein that on 22.6.2016 at 1.00 p.m. when he was going to his house for having meals, as soon as he reached near the house of Motilal (complainant in the present case) who is his neighbour, he inflicted one blow of lathi on his head, he sustained head injury. When his wife came to rescue him, Motilal again made a blow of lathi twice on his head. When his wife tried to expostulate, Motilal catching hold her blouse dragged her towards his house. He also slapped her. She was saved by Santosh and other labours. A threat of life was also given to him, hence, the prayer is made accordingly.

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Learned counsel for the opp. party no. 2 opposed the prayer and submitted that the FIR was lodged by appellant no. 1 by some political pressure. When the FIR of the present complaint was not lodged, he moved an application under section 156(3) Cr.P.C. On the basis of complaint lodged on that application, the impugned order has been passed by the trial court summoning the appellants to face trial under the above sections.

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From the perusal of the record, it is clear that the incident dated 22.6.2016 is admitted to both parties, so it does not make any difference that the opp. party no. 2 had lodged a belated FIR. Who was the aggressor and who was the defender in the incident, it shall be decided by the evidence in the trial court. Regarding the appellant no. 5 it is not opposed that he also belongs to scheduled caste category, hence, offence under SC/ST Act cannot be said to be made out against him. The rest appellants are admittedly from general category. The opp. party no. 2 admittedly belongs to scheduled caste. In the opinion of the court, the merits of the dispute shall be decided by the evidence. The impugned order dated 6.4.2023 passed on the basis of the statements of the complainant and the witnesses needs no interference, except the fact that no offence under SC/ST Act can be said to be made out against appellant no. 5. Hence, the order dated 6.4.2023 passed by the trial court to the extent of summoning the appellant no. 5 under SC/ST Act only is set aside. Rest order of the trial court is hereby confirmed.

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Appeal is, thus, partly allowed.

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Order Date :- 23.8.2023 Gss

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Digitally signed by :- GIRAJA SHANKER SHARMA High Court of Judicature at Allahabad

Pardeshiya @ Pardesilal and 4 Others v. State of U.P. and Another

Case brief

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Pardeshiya @ Pardesilal and 4 Others v. State of U.P. and Another

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