The Allahabad High Court while noting that the alleged act of abusing the victim took place inside the car, and not in public view, quashed an order of the subordinate court issuing summons to an accused for facing the trial of offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
A Single Bench of Justice Raj Beer singh passed this order while hearing an appeal filed by Syed Mohiuddin Ahmad.
The criminal appeal has been preferred under Section 14-A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 for quashing of charge-sheet dated 28.01 .2021 and impugned cognizance/summoning order dated 24.03.2021, passed by the Special Judge, SC/ST Act, Allahabad in Special Trial, arising out of Case under Sections 323, 504, 506, 406 IPC and Section 3(1)Da, Dha of SC/ST (PA) Act, P.S Jhusi, District Allahabad.
It has been argued by the counsel for the appellant that the respondent No 3 has lodged first information report of this case making false and baseless allegations. The dispute between the parties is civil in nature, which has been converted by the respondent No 3 into criminal case by concocting a false story.
In the complaint made to the police and SSP regarding the incident, there were no allegations that the respondent No 3/informant was abused by using caste indicative words. The first information report of the case has been got lodged by the respondent No 3 by moving an application under Section 156(3) CrPC.
Counsel submitted that in fact regarding the disputed sale-deed, the respondent No.3 has already received his due amount and he has lodged this case with mala fide intention.
It is further argued by the counsel for the appellant that by impugned order dated 24.03.2021 cognizance was taken and appellant was summoned and by the same order non-bailable warrants have been issued against the appellant, which is against the well settled position of law.
It was also submitted that even as per version of first informant, the alleged incident of abusing took place inside the car and thus, it cannot be said that respondent No 3/informant was abused or humiliated on ground of his caste within public view.
Referring to facts of the matter, it was submitted that no prima facie case is made out.
On the other hand, A.G.A and counsel for the respondent No 3 have opposed the appeal and argued that in view of allegations made in the first information report and material collected during investigation, a prima facie case is made out against the appellant.
During investigation the informant and other witnesses have supported the prosecution version. It was submitted that there is no illegality or perversity in the impugned summoning order.
The Court observed that,
So far as the issuance of non-bailable warrants by impugned order dated 24.03.2021 is concerned, it may be seen that Special Judge (SC/ST Act), Allahabad has taken cognizance by order dated 24.03.2021 and on the same date by same order, non- bailable warrants were issued against the appellant.
It is clear that neither any summons have been issued to accused-appellant nor any bailable warrants were issued to accused appellant before issuance of non-bailable warrants vide impugned order dated 24.03.2021. The issue as to when non-bailable warrants are to be issued is well settled.
In case of Raghuvansh Dewanchand Bhasin v State of Maharashtra and another 2012 (9) SCC 791, it has been held that power and jurisdiction of court to issue appropriate warrant has to be exercised judiciously, striking a balance between the need of law enforcement on the one hand and the protection of citizen from highhandedness at the hands of the law enforcement agencies on the other.
Bearing in mind the statutory provisions and the principles of law laid down by the Supreme Court in above-stated cases, it would appear that power and jurisdiction of trial court to issue appropriate warrant of arrest has to be exercised judiciously and sparingly with utmost circumspection striking a proper balance between the personal liberty guaranteed under Article 21 of the Constitution of India and societal interest and in order to secure attendance of the person accused, the court should first issue summon simplicitor or bailable warrant to accused and only thereafter, if he does not appear after service, as a last resort, non- bailable warrant of arrest should be issued to secure the presence of the accused person.
In the case, it is clear that due procedure of law has not been followed while issuing non-bailable warrants against appellant and thus, the impugned order so far as it relates to issuance of non-bailable warrants against appellants-accused, is not in accordance with law.
So far the matter pertains to summoning of appellant under 323, 504, 506, 406 IPC, it may be observed that it is settled position that at the stage of cognizance and at the stage of issuing process to the accused, the Magistrate 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 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.PC.
“In the case, perusal of record shows that the respondent No 3 has lodged first information report of this case by moving an application under Section 156(3) Cr.P.C and it was alleged that the informant was in need of some money and that connection he met the appellant and thereafter he has executed the sale-deed at the instance of appellant and that in consideration amount, he was given one cheque of Rs 5,50,000/- and another cheque of Rs 6 lakhs but when he presented the same in bank, the same were dishonored.
It was further alleged that on 15.07.2019 the appellant has called the informant on pretext of providing said amount of sale-deed and the appellant and his associates forcibly dragged him into a car and assaulted and abused him by using caste indicative words and thereafter he was thrown out from the car. It is apparent from the above stated facts that alleged incident of abusing the informant took place inside the car.
In view of facts of the matter and also considering the law laid down in case of Hitesh Verma vs the State of Uttrakhand and another 2020 AIR (SC) 5584, it cannot be said that alleged incident of abusing inside the car took place within public view, thus, no offence under Section 3(1)(da), (dha) is made out. Further essentially the dispute between the parties is related to dispute over property and sale-deed”, the Court further observed while disposing of the appeal.
“In view of aforesaid, the summoning of accused-appellant under Section 3(1)(da), (dha) SC/ST Act is quashed. The non bailable warrants, issued against the appellants vide impugned order dated 24.03.2021, are also quashed. However summoning of accused appellant for offences, under Sections 323, 504, 506, 406 IPC is upheld. The impugned summoning order has been altered to that extent. The case under Section 323, 504, 506, 406 IPC shall proceed against the appellant/accused before the Competent Court in accordance with law”, the order reads.