Raj Kumar Maurya and 2 Others Vs State of U.P. and Another

Neutral Citation No. - 2023:AHC:182295

Court No. - 84

Case :- CRIMINAL APPEAL No. - 7250 of 2023 Appellant :- Raj Kumar Maurya And 2 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Rajesh Kumar Patel Counsel for Respondent :- G.A.,Pradeep Kumar Pandey

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With

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Case :- CRIMINAL APPEAL No. - 4419 of 2023 Appellant :- Raj Kumar Maurya And 3 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Rishikesh Kumar Maurya,Pradeep Kumar Pandey Counsel for Respondent :- G.A.,Rohan Gupta Hon'ble Mrs. Sadhna Rani (Thakur),J.

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As both the appeals are filed against the same order dated 04.03.2023 passed by the Special Judge SC/ST Act/ Additional Session Judge, Ghaziabad in S.S.T. No. No.1982 of 2022 (State Versus Raj Kumar Maurya and others) under Sections 504 IPC and 3(1) (r) of SC/ST Act, P.S. Loni Border, District Ghaziabad, so both the appeals are being decided by a common order.

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By impugned order, the trial court rejected the discharge application moved by all the four appellants.

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Previously, Criminal Appeal No.4419 of 2023 was filed on behalf all the four appellants but on 30.05.2023 as the counsel for appellant nos.1, 2 and 4 was not present and appellant no.3 was present in person before the Court to argue, so the Criminal Appeal No.4419 of 2023 was dismissed on behalf of appellant nos.1, 2 and 4 for want of prosecution with liberty to file a fresh appeal and consequently on 17.07.2023 Criminal Appeal No.7250 of 2023 above was filed by appellants Raj Kumar Maurya, Pawan Kumar Maurya and Shanta Devi.

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Initially regarding incident dated 08.10.2017 an application under Section 156(3) Cr.P.C. was moved by Pooja, the daughter of Sukhpal Singh, Sumitra, the wife of Sukhpal Singh and Sukhpal Singh against the above four appellants and 4-5 unknown persons on 30.11.2017, but this application was dismissed vide order dated 26.09.2018 with the finding that the basic facts have not been

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mentioned in the application. Hence, the application under Section 156(3) Cr.P.C. finding to be faulty was rejected by the trial court. After this rejection order dated 26.09.2018, after one and a half year on 14.05.2019 FIR No.398 of 2019 was lodged by opposite party no.2 Smt. Sumitra, the wife of Sukhpal against the four appellants and 4-5 unknown persons regarding the same incident dated 08.10.2017 with the version that on 08.10.2017 at about 6 o'clock all the appellants alongwith 4-5 unknown persons equipped with baton and sticks entered into house of the first informant/ opposite party no.2 and started opposing the construction work being done by opposite party no.2. When the husband of opposite party no.2 resisted, he was thrashed at the hands of the appellants. The first informant and her daughter Pooja were also thrashed. They were abused. The caste based words were also hurled by the appellants. The clothes of the daughter of the first informant were torn with the malafide intention. Obscene activities were also done. On their hue and cry neighbours and many other persons came inside the house and somehow saved them. Due to injury, the husband of the first informant got fainted on the spot. The appellants made good their escape giving threat of life.

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On the basis of this FIR, after investigation final report was filed on 23.09.2019. When the protest petition was filed by the opposite party no.2 further investigation was ordered and after that the charge-sheet under Section 504 IPC and under Section 3(1) (r) of SC/ST Act was filed against the appellants.

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Appellant Shiv Kumar Maurya, who is present in person has submitted that after the rejection of application under Section 156 (3) Cr.P.C. of the opposite party no.2 the FIR cannot be filed on the same facts. Otherwise also, the FIR was filed on 14.05.2019, while the application under Section 156(3) Cr.P.C. was rejected on 26.09.2018. The incident mentioned both in the application under Section 156 (3) Cr.P.C. and in the FIR was dated 08.10.2017. This delay from 26.09.2018 to 14.05.2019 has not been explained. In support of his version the appellant Shiv Kumar Maurya placed before the Court judgment of Single Bench of High Court of Uttarakhand at Nainital in Criminal Revision No.201 of 2013, Lt. Colonel (Retd.) Balraj Singh Lamba and Another Vs. State of Uttarakhand and Another, dated 23.12.2022, wherein it was held that as on the same facts the application under Section 156(3) Cr.P.C. of the first informant was dismissed on merits and that order had become final as it was not challenged, by concealing the order of rejection of that application under Section 156(3) Cr.P.C. dated 10.07.2023 the FIR was lodged by the first informant. The

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Court found that the order of the magistrate dated 10.07.2012 rejecting the application under Section 156(3) Cr.P.C. nullified the case and, thus, the investigation following on the basis of such FIR and the proceedings subsequent thereto were vitiated and the entire proceedings of the case were quashed. The revision of the revisionist was allowed. The facts of the present case claiming to be the same the prayer is made by the appellant Shiv Kumar Maurya to set aside the impugned order 04.03.2023 whereby the discharge application of the appellants dated 20.01.2023 was rejected.

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It is also submitted by the appellant Shiv Kumar Maurya that regarding the same incident dated 08.10.2017 he had moved an application under Section 156(3) Cr.P.C., which was allowed vide order dated 22.01.2018 and FIR No.72 of 2018 was lodged against Sukhpal, the husband of opposite party no.2, Vijay @ Chottu, Pammi, Mauna @ Ajay and Ravi @ Shashikant, the children of opposite party no.2.

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Learned counsel for rest three appellants argued that as per FIR itself the whole incident took place inside the house of the first informant/ opposite party no.2, which cannot be said to be within the public view and otherwise also, the dispute between the parties arose regarding the construction being done by the opposite party no.2, so it cannot be said that the caste based words were hurled with the intention to humiliating or intimidating the opposite party no.2 because of her belonging to the scheduled caste or scheduled tribe community.

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Learned counsel for the opposite party no.2 submitted that previously also the appellants had approached to this Court against the FIR lodged by the opposite party no.2, wherein order of 'no coercive action be taken against the appellants till filing of report under Section 173 Cr.P.C.' was passed. After that when the chargesheet was filed against the appellants without appearing in the trial court and without securing bail the appellants moved the discharged application before the trial court, which has been rightly dismissed by the trial court. It is also argued that in the previous application under Section 156(3) Cr.P.C. moved by the opposite party no.2 on 30.11.2017 it was not mentioned that the opposite party no.2 belongs to SC/ST community, nor any certificate to that effect was filed. Affidavit of any independent witness supporting the version of FIR was also not filed and finding that a case under Section 308 IPC was pending against the husband of opposite party no.2 filed by the appellant Shiv Kumar Maurya and this fact had also not been mentioned in the

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application under Section 156(3) Cr.P.C., the trial court found that the documents regarding the basic facts mentioned in the application were not filed, hence, the application under Section 156(3) Cr.P.C. of the opposite party no.2 was rejected. Thus, it is claimed by the counsel for opposite party no.2 that his application was not rejected on merits. It was rejected only on the technical grounds. Thus, after removing the defects pointed out in the order dated 26.09.2018 the FIR was lodged against the appellants, thus, the order dated 26.09.2018 cannot be said to be passed on merits. The appellants cannot take benefit of the judgment of High Court of Uttarakhand at Nainital, Lt. Colonel (Retd.) Balraj Singh Lamba and Another (supra) . It is further argued that incident dated 08.10.2017 is admitted to both the parties. The application under Section 156(3) Cr.P.C. of the opposite party no.2 was filed on 30.11.2017, while the FIR of the appellants under Section 308 IPC was lodged on 31.01.2018 on the basis of the order dated 22.01.2018 passed on the application of the appellant Shiv Kumar Maurya under Sections 156 (3) Cr.P.C. moved in the year 2017 thus that FIR cannot be said to be counterblast of the application filed by the opposite party no.2 under Section 156(3) Cr.P.C., hence, prayer is made accordingly.

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Thus, the main argument of appellant Shiv Kumar Maurya is that on the basis of judgement of Uttarakhand High Court in Criminal Revision No. 201 of 2013 above as the application under Section 156(3) Cr.P.C. of opposite party no.2 had been rejected on 26.09.2018 the FIR filed by the same party on 14.05.2019 on the same facts is not maintainable and the FIR and the corresponding proceedings shall be considered as nullity.

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If we go through the order dated 26.09.2018, the application under Section 156(3) Cr.P.C. of the opposite party no.2 was rejected by the court concerned on the ground that in the application the facts that the opposite party no.2 belongs to the SC/ST community was not mentioned. No certificate in this regard was filed. No affidavit of an independent witness of the incident was filed and the fact of pending case registered under Section 308 IPC of the appellant Shiv Kumar Maurya was also concealed in the application under Section 156(3) Cr.P.C., thus, finding that in the application the basic facts were not mentioned thus on the basis of fundamental elemental error the application of the opposite party no.2 was rejected. Thus, it is very much clear that the application of the opposite party no.2 under Section 156(3) Cr.P.C. was not rejected on merits, rather it was rejected on technical grounds.

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Thus, in the opinion of the Court the application under Section 156

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(3) Cr.P.C., which was not decided on merits cannot be said to be a bar for lodging an FIR on the basis of same facts.

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Other argument raised before the Court is that the offence under section 3(1) (r) of SC/ST Act cannot be said to be made out because as per FIR itself the whole incident took place inside the house of the first informant and after hearing the hue and cry of the victims the witnesses are said to have arrived in the house. Thus, as per the version of the FIR itself at the time of hurling caste based abuses by the appellants inside the house no outsider was present there, so the hurling caste based words cannot be said to be within public view. Otherwise also, for offence under Section 3(1) (r) of SC/ST Act the humiliation or intimidation must be with the intention of humiliating the victim because of her/ his belonging to the SC/ST community and there is no such version in the FIR, hence, in the opinion of the Court an offence under Section 3(1) (r) of SC/ST cannot be said to be prima facie made out against the appellants. So the rejection of discharge application with regard to Section 3(1) (r) of SC/ST Act is found erroneous.

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So far as the offence under Section 504 IPC is concerned both in the FIR and in the application under Section 156(3) Cr.P.C. there is version of the opposite party no.2 that all the appellants hurled abuses against her and her family members. An FIR No. 72 of 2018 has been lodged by the appellant Shiv Kumar Maurya against the husband and children of opposite party no.2 regarding the incident of the same day and time. Thus, the fact that some incident took place between the parties on 08.10.2017 at about 6:30 pm is admitted to both the parties. Whether the appellants hurled abuses against the opposite party no.2 or not is up to the trial court to decide after the evidence of the parties.

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In the opinion of the Court, the rejection of the discharge under Section 504 IPC is found to be correct on the basis of the evidence on record.

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Hence, the appeals are allowed partly. The appeals are allowed with regard to rejection of discharge application under Section 3(1) (r) of SC/ST Act and the appeals are rejected with regard to the rejection of the discharge application under section 504 IPC. Thus, the impugned order dated 04.03.2023 is affirmed with regard to Section 504 IPC and it is set aside with regard to Section 3(1) (r) of SC/ST Act.

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Order Date :- 19.9.2023 Radhika

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

Raj Kumar Maurya and 2 Others v. State of U.P. and Another

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Raj Kumar Maurya and 2 Others v. State of U.P. and Another

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