Dismissed

Musherraf Mahmood Buxhi v. State of U.P. and Another

Allahabad HC7 Apr 2023CRLA/9772/2022

Case brief

AI extract

What is this about?

The appellant challenged the summons issued under the SC/ST Act accusing him of assault and abuse out of caste hatred. The High Court held there was sufficient ground to proceed, the lower court applied its mind, and the appeal was dismissed with a direction for expeditious bail consideration.

What did the court decide?

The appeal for quashing the summoning order is dismissed; bail application directed to be decided expeditiously if filed within three weeks.

Musherraf Mahmood Buxhi Vs State of U.P. and Another — Caste Atrocities | Allahabad HC (2023)

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Court No. - 93

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Case :- CRIMINAL APPEAL No. - 9772 of 2022

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Appellant :- Musherraf Mahmood Buxhi Respondent :- State of U.P. and Another Counsel for Appellant :- Sharique Ahmed Counsel for Respondent :- G.A.,Mukesh Kumar Pandey

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Hon'ble Gajendra Kumar,J.

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Heard learned counsel for the appellants, learned counsel for the respondent No.2 and learned AGA for the State.

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This appeal has been preferred by the appellants under section 14 A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) for quashing of the cognizance/summoning order dated 17.05.2022, passed by the learned Additional Sessions Judge/ Special Judge (SC/ST Act), Ballia in Sessions Case No.324 of 2022, Case Crime No.37 of 2021, under Sections 147, 323, 504, 506, 324 IPC and Section 3(1)(Da), 3(1)(Dha) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, whereby, the appellant has been summoned for aforesaid offences.

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It has been argued by learned counsel for the appellants that the impugned order is against facts and law and thus, liable to be set aside. It is further submitted that there is a civil suit going on in between the parties and due to which the appellant has been falsely roped in the present case maliciously. The respondent No.2 has lodged first information report of this case making false and baseless allegations. In the first information report, no motive at all has been attributed to the accused/appellant and that there are absolutely no reasons as to why the appellant would abuse or assault the respondent No.2/informant and his family members. Further, the first information report was lodged against two named and five named accused persons. It was submitted that the police did not investigate the matter properly and charge-sheet was submitted in a routine manner. Learned counsel submitted that no prima facie case is made out against appellant.

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Learned AGA and learned counsel for respondent No.2 have opposed the appeal and argued that the appellants/accused are named in the first information report and that in view of allegations made in the first information report and material collected during investigation, a prima facie case is made out against appellants.

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I have considered rival submissions and perused record.

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It is well settled that at the stage of cognizance and at the stage of issuing process to the accused, the Magistrate / Court has to be satisfied that there is sufficient ground for proceeding. The court has to consider whether there is sufficient ground for proceeding and not

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whether there is sufficient ground for conviction. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons, particularly when the cognizance is being taken on the basis of report filed by the police after investigation, under section 173(2) Cr.P.C. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492 , it was held that taking cognizance has no esoteric or mystic significance in criminal law and it connotes that a judicial notice is taken of an offence, after application of mind. Taking of cognizance is thus a condition precedent for holding a valid trial. In M/s. India Carat Pvt. Ltd. Vs. State of Karnataka MANU/SC/0349/1989: 1989(26) ACC 280 (SC) , the Supreme Court has observed that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused.

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In Mehmood Ul Rehman v. Khazir Mohammad Tunda and others (2015) 12 SCC 420 , it was held as under:-

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"21. Under Section 190(1)(b) Cr.P.C, the Magistrate has the advantage of a police report and under Section 190(1)(c) Cr.P.C., he has the information or knowledge of commission of an offence. But under Section 190(1)(a) Cr.P.C., 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) Cr.P.C. The complaint is simply to be rejected."

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Thus, in so far as taking cognizance based on the police report is concerned, the Magistrate/ court has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. For issuance of process against the accused, only it has to be seen whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defenses. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. In this connection a reference may also be made to the case of Nupur Talwar v. Central Bureau of Investigation and another (2012)11 SCC465.

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In the instant matter, perusal of record shows that the respondent No.2 has lodged first information report of this case against two named accused persons including the present appellant and five unknown accused persons alleging that on 01.05.2019 at 10:00 a.m. due to controversy of land in between the parties, appellant has abused the first informant and her family members and assaulted with lathi, sticks and fists and resultantly they have sustained several injuries. He has also stated that they belong to scheduled caste. During investigation,

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the injured as well as several other witnesses have supported the prosecution version. Merely because independent witness has not supported the prosecution version, it cannot be a ground to quash the impugned charge-sheet and summoning order. Considering allegations made in the first information report and statements of informant/respondent No.2, and other witnesses, injury reports and other material collected during investigation, it cannot be said that no prima facie case is made out against appellants.

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Counsel for the appellant has not been able to point out any such illegality much less than any abuse of court's process which may persuade this Court to interfere in the impugned order. The impugned order reflects judicial application of mind. There appears no good ground to castigate the impugned order. The view taken by the court below seems to be correct and even this Court does not have reason to take a different view in the matter. Therefore, the prayer for quashing the impugned order is refused.

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However, considering facts of the matter, it is directed that in case the appellants-accused appear / surrender before the Court concerned within a period three week from today any apply for bail, their bail application shall be decided expeditiously in accordance with law.

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With aforesaid observations, the appeal is dismissed .

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Order Date :- 7.4.2023 Ashutosh

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

Musherraf Mahmood Buxhi v. State of U.P. and Another

Case brief

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Musherraf Mahmood Buxhi v. State of U.P. and Another

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