Bhaskar Rai and Others vs State Of U.P. and Another

Hon''ble Naheed Ara Moonis, J.—Heard Sri Ravindra Nath Rai, learned counsel for the applicants and the learned AGA and have taken through the record.

By means of the present application u/s 482 Cr.P.C. the applicants have invoked the inherent jurisdiction of this Court with a prayer to quash the further proceedings in Criminal Case No. 371/11/2002 Kailash Vs. Bhashakar Rai and others under Sections 147/504/506 IPC read with Section 1 (X) S.C.& S.T.Act, P.S. Mahuly, District Basti pending in the Court of A.C.J.M.Ist Basti and also to stay the order dated 7.2.2004 passed by the A.C.J.M.Basti whereby the applicants have been summoned to face the trial in the aforementioned offence.

The genesis of the facts emanating from the prosecution case is that the opposite party no.2 filed a complaint against three persons namely Kishun, Vishun and Lotoo with the allegations that the complainant belongs to the scheduled caste community. He is owner in possession of the Arazi No. 481/0-1-0 area of land. The accused persons have been forcibly trying to dispossess the complainant from the land in question with the oblique motive of grabbing the same. The property in question was recorded in the revenue record in the name of the complainant after consolidation proceedings. The accused persons armed with lathi,danda and Kudal reached on the spot on 3.7.2000 and started hurling abusive and filthy languages to the complainant and his family members. When the complainant tried to restrain them, the accused persons became infuriated and started beating with fisticuffs and lathi. On the shriek and scream of the complainant besides Daya Ram and Hari Kishan a number of villagers rushed at the spot and witnessed the occurrence. On account of their intervention, the life of the complainant was saved. The assailants ran away from the spot unleashing a reign of terror and threatening of dire consequences to the complainant. On account of fear and terror of the accused persons, the complainant could not reach at the police station on the date of occurrence. Anyhow on 5.7.2000, the complainant went at the police station concern and got his medical examination conducted at Primary Health Centre. No first information report was lodged against the accused persons despite hectic efforts made by the complainant before the concern police station and the police authorities. In these circumstances, the complainant filed a complaint before Additional Judicial Magistrate Basti on 11.10.2000 arraigning three persons named above as accused persons. In respect of the same incident, the complainant moved an application u/s 156(3) Cr.P.C. on 27.1.2001 in which three more persons namely Bhaskar Ram, Santosh and Manorath were added in addition to Kishun,Vishun and Lotoo which was registered as Case Crime No. C-1 of 2002 under sections 147/148/323/504/506/452 IPC read with section 3(1)(X) of S.C. & S.T.Act. The matter was investigated by the police and the investigating officer did not find any credible and clinching evidence to substantiate happening of such incident hence final report was submitted disowning the allegations made with respect to the said incident.

The complainant filed protest petition which was treated a complaint. The statement of the complainant u/s 200 Cr.P.C. and of the two witnesses namely Daya Ram and Hari Kishan u/s 202 Cr.P.C. were recorded. On the basis of the statement of the complainant and the witnesses and the medical report, cognizance was taken by the learned Magistrate vide order dated 7.2.2004 against all the accused persons and the accused persons were summoned to face the trial u/s under section 147/504/506 IPC read with section 3(1)(X) of S.C. & S.T. Act. Aggrieved by the order dated 7.2.2004, the applicants preferred revision before the Additional District & Sessions Judge Court No.6 Basti. The revision of the applicants was rejected vide order dated 21.11.2005 directing the applicants to appear before the trial court on 2.12.2005.

It is submitted by the learned counsel for the applicants that the revision was dismissed on technical grounds that against the summoning order no revision lies. The summoning order passed by the learned Magistrate suffers from manifest error of law as it was not explicitly mentioned whether prima facie offence is made out against the applicants or not. There was great inconsistency and conflict in the complaint and the application u/s 156(3) Cr.P.C. Two proceedings were initiated against the applicants for the same incident i.e. one on the basis of complaint and the other on the basis of protest petition which is in clear infraction of fundamental rights as no person can be put twice in peril for the same offence. The accused Vishun died during the pendency of the criminal case thus the proceeding against Kishun stood abated. On 13.12.2006, the two applicants namely Kishun and Loatoo arraigned in complaint under sections 323/504/506 IPC had been acquitted. The order dated 13.12.2006 passed by the Additional Chief Judicial Magistrate Court No.1 Basti was not challenged in any court of law which has attained finality. The copy of the order dated 13.12.2006 was filed with the affidavit accompanying the recall application dated 17.2.2011. On the same set of facts narrated in the complaint an application moved u/s 156(3) Cr.P.C. registered as an F.I.R. and investigated by the investigating officer who did not find any credible and clinching evidence against the applicants thus final report was submitted. Merely on the basis of protest petition on frivolous grounds against the final report, the same was treated as complaint and summoning order was passed against all the applicants on 7.2.2004. Even there is not an iota of evidence implicating the applicants u/s 3(1)(10) S.C. & S.T.Act as except the applicant no.1 Bhaskar Rai all other accused persons belong to the scheduled caste community. There is no whisper of any words uttered by caste whereby the complainant''s sentiment was hurt.

The learned counsel for the applicants has placed reliance upon the judgment of Apex Court in the case of Inder Mohan Goswami Vs. State of Uttaranchal 2007 (12) S.C.C. 1. wherein it has been held that inherent powers u/s 482 Cr.P.C. should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, the Court would exercise its inherent power to prevent injustice. Further reliance has been place in the case of Ashabai Machindra Adhagale Vs. State of Maharashtra and others LXV 2009 A.C.C.179 and Asmathunnisa Vs. State of A.P.an others LXXIV 2011 A.C.C. 973 and has contended that where essential ingredients of an offence complained of is not mentioned,such frivolous prosecutions may be quashed to prevent abuse of process of Court. On the principles laid down in the aforesaid case, continuation of the prosecution of the applicants is nothing but an abuse of process of Court hence the entire proceedings may be quashed.

Per contra Sri Aditya Kumar Yadav, learned counsel appearing on behalf of the complainant submitted that the applicants are influential persons. They overawed the complainant in order to grab his land. The prosecution story has been narrated correctly. There is no embellishment in the prosecution version. The order passed by the court below does not suffer from any illegality or perversity.The matter is languishing in the court below and could not be decided till now on account of an ex.parte interim order granted by this Court. After dismissal of the present application on 19.7.2010, the court below has proceeded with the matter and non-bailable warrants were issued against the applicants. The applicants had preferred revision against the order dated 7.2.2004 passed by the Additional Chief Judicial Magistrate (Ist) Basti before the Additional District & Sessions Judge which was dismissed vide order dated 21.11.2005. The applicants are not entitled to any protection of Article 20(2) of the Constitution of India or section 300 Cr.P.C. in any manner. They are free to raise such objection by moving discharge application. The present application has no merit as no error has been committed by the court below in passing the summoning order.

It transpires from the arguments advanced by the learned counsel for the parties that initially complaint was filed on 11.10.2000 against three persons with respect to the incident dated 3.7.2000 for grabbing the land of the complainant wherein the complainant was thrashed with fisticuffs and danda. In respect of the same incident another application u/s 156(3) Criminal Procedure Code was filed by the complainant on 27.1.2001 arraigning six persons wherein investigating officer submitted final report after investigation. The complainant filed protest petition which was treated as complaint after recording the statement of complainant u/s 200 Cr.P.C. and the witnesses u/s 202 Cr.P.C. all the applicants were summoned by the court below to face trial under sections 147/148/323/504/506 IPC read with section 1(10) of S.C. & S.T.Act. All the accused persons filed revision before the Additional Sessions Judge and the revision was also dismissed vide order dated 21.11.2005. The applicants are now being prosecuted under sections 147/504/506 IPC read with section 1 (X) S.C. & S.T. Act and have been summoned by the Additional Chief Judicial Magistrate (Ist) Basti vide order dated 7.2.2006. In the complaint case, the court below took the cognizance of offence on 4.10.2002 against Kishun, Vishun and Loatoo and summoning order was passed. Prior to issuance of process in the complaint, the complainant had moved the application u/s 156(3) Cr.P.C. on account of inaction against the accused persons. The cognizance in complaint case was taken much after the filing of the application u/s 156(3) Cr.P.C. The two applicants Kishun and Loatoo were acquitted of the charges u/s 323/504/506 IPC vide order dated 13.12.2006. One of the applicant Vishun had died during the pendency of the trial in the complaint case. The said order dated 13.12.2006 was not challenged before any court of law rather it attained finality.

It is evident that none of the applicants who have been summoned on the basis of the protest petition had ever raised any such objection during the pendency of the trial in complaint case and only when the applicant Kishun and Loatoo were acquitted u/s 323/504/506 IPC,the plea has been taken that the proceeding against them is barred by the principle of res-judicata u/s 300 Cr.P.C. and Article 20(2) of the Constitution of India.

Neither the applicants no.1,2, and 3 were ever prosecuted along with the applicants no.4 & 5 in complaint Case No. 1556 of 2000 under sections 323/504/506 IPC nor the applicants no. 4 & 5 were earlier prosecuted u/s 1 (X) of S.C. & S.T.Act in the aforementioned complaint case. Hence the principle of double jeopardy is inapplicable in the present set of facts and circumstances. It is well settled that the cognizance is taken of the offence not of the offender.

Therefore in view of the aforesaid discussions and from the perusal of the materials on record and looking into the facts and after considering the arguments of the learned for the complainant, it cannot be said that no offence has been made out against the applicants. Cognizance taken by the trial court, whereby the applicants have been summoned to face the trial suffers from no illegality and as such the prayer for quashing the proceedings is refused. The applicants are at liberty to raise all the objections before the court below and the court below will consider the same and will pass appropriate orders in accordance with law.This Court cannot embark upon enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. This is the function of the trial Judge.

At the stage of issuing process this court is not expected to examine and assess in detail the material place on record. Only this has to be seen whether prima facie cognizable offence is made out or not. The Apex Court has also laid down the guidelines in the case State of Haryana Vs. Bhajanlal, 1999 SCC (Crl) 426, and State of Bihar Vs. P. P. Sharma 1992 SCC (Crl) 192.where the criminal proceedings could be interfered and quashed in exercise of its power envisaged u/s 482 Cr.P.C.

Having considered rival submissions advanced by the learned counsel for the parties, this Court does not find any justifiable ground for quashing the proceedings or the charge sheet of the aforesaid case in exercise of its inherent powers conferred u/s 482 Cr.P.C.. The application is accordingly dismissed.

However, considering the facts and the circumstances of the case, it is directed that in case applicants appear before the court concerned in the aforesaid case within 30 days from today and apply for bail, the same shall be heard and disposed of in view of decision rendered in the case Amarawati and Another (Smt.) Vs. State of U.P., which was approved by the Hon''ble Apex Court in Lal Kamlendra Pratap Singh Versus State of U.P.decided on 23.3.2009 in Criminal Appeal No. 538 of 2009.

No coercive steps shall be taken against the applicants within the stipulated period of 30 days.

In case the applicants do not appear before the court below within stipulated time the court below shall be at liberty to take appropriate action against the applicants in accordance with law.