The Lucknow Bench of the Allahabad High Court while allowing the appeal observed that if the Magistrate is bound to summon the accused persons in all the offences stated by a complainant and his witnesses and their statements recorded under Sections 200 and 202 CrPC the purpose of inquiry contemplated under Section 202 CrPC would be frustrated and Section 202 CrPC would be rendered non existent.
A Single Bench of Justice Mohd Faiz Alam Khan passed this order while hearing a Criminal Appeal filed by Rajveer Kumar Pandey @ Babbu Pandey and 3 Others.
The appeal under Section 14-A (1) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 has been filed by the appellants, Rajeev Kumar Pandey @ Babbu Pandey, Manish Kumar Pandey @ Rupesh Kumar Pandey, Prabhat Kumar Pandey @ Chuttey Pandey and Vineet Kumar Pndey with the prayer to quash the summoning order dated 10.10.2022 passed by the A.C.J (J.D) Court, Allahabad as well as the entire proceeding of Complaint Case under Sections 323, 307, 504 and 506 IPC and 3(1) (10) SC/ST Act, 1989, Police Station Karchan, District Prayagraj.
Anil Srivastava, Senior counsel while drawing the attention of the Court towards the order of date 10.10.2022, submitted that the order has been passed by the trial court in most negligent manner, without advertising to the material/ evidence placed before it by the complainant in the form of his statement recorded under Section 200 Cr.P.C as well as of his witnesses under Section 202 Cr.P.C without discussing the probability of the commission of the alleged offences on the touchstone of probability.
It is further submitted that an application under Section 156(3) Cr.P.C was moved by the opposite party no 2 before the Magistrate concerned and the same was treated as complaint vide order dated 1.10.2015 and after recording the statement of the complainant/ opposite party no 2 Rajesh Kumar and his two witnesses, namely, Ram Prakash @ Ram Pravesh and Chhavi Nath under Section 200 and 202 Cr.P.C, by passing the order dated 28.2.2019 only accused Manish Kuamr Pandey @ Rupesh Kumar Pandey was summoned to face trial under Sections 323, 504, 506 IPC.
However, the order was challenged by the opposite party no2 / complainant by filing a revision and vide order dated 12.3.2021 passed by the revisional court / Additional District and Sessions Judge Court, Allahabad the order dated 28.2.2019 was set aside and the trial court was directed to pass an order afresh after providing an opportunity of being heard to the parties.
It is next submitted that the Additional Chief Judicial Magistrate Court, Allahabad keeping in view the order passed by the revisional court again passed an order dated 3.11.2021, whereby all the accused persons / appellants were summoned to face trial for committing offences under Sections 323, 504, 506 IPC and this order was again challenged by the complainant by filing a criminal revision and vide order dated 9.6.2022 of the revisional court/ Sessions Judge, Allahabad the order dated 3.11.2021 was set aside and the Magistrate was directed to pass a fresh order keeping in view the observation made in the order of the revisional court of date 9.6.2022 and in compliance of the same the impugned order dated 10.10.2022 has been passed.
It is vehemently submitted that the allegation as levelled in the complaint as well as in the statement of the complainant and the prosecution witnesses recorded under Sections 200 and 202 Cr.P.C are highly improbable and could not be believed on the touchstone of probability, more so when the parties are having inimical relations from before the alleged incident and the revisional court by passing an order dated 9.6.2022 has exceeded its jurisdiction in appreciating the evidence available on record which was an area earmarked for the trial court/ magistrate.
It is further submitted that the trial court while passing the impugned order has considered the affidavit filed by one of the witness of the complainant, namely, Chhabinath and filing of the affidavits by witnesses of the complainant denying the prosecution story shows that the witness has been won over by the appellants and thus proceeding under Section 340 Cr.P.C has been initiated by the opposite party no 2 against them and the duty of the Magistrate at the time of summoning was to confine himself to the material which was placed before him at the time of passing of the earlier orders and thus the filing of the affidavits by the witnesses, subsequently has not been rightly taken into cognizance by the Magistrate as the issue is also under active consideration of the trial court in the proceedings initiated by the opposite party no 2 under Section 340 of the CrPC. Thus there is no illegality or to say any irregularity in the impugned order passed by the trial court.
AGA has also supported the impugned order passed by the trial court.
The Court observed that,
Having heard counsel for the parties and having perused the record, it is transpired from the record that initially an application under Section 156(3) Cr.P.C was given by the opposite party no 2 against the appellants alleging therein that on 24.6.2015 the applicant after taking leave from his department was going to his house situated at village Gonedeeh, Police Station Karchana and when he arrived at Bheerpur Pandey Nursery at about 7.40 P.M the appellants/ accused persons stopped him and addressed him with casteist remarks as well as intimidated him, abused him and assaulted him with fists and kicks.
It is further stated that the accused/ appellant Prabhat Kumar Pandey @ Chotey Pandey took out a country made pistol and with a point blank range fired which was missed, on which, the opposite party no.2 raised an alarm attracting the passed by on which the accused persons flied away after intimidating him. He went to the concerned Police Station Karchana in the morning and attempted to lodge an FIR but the same could not be lodged as the police personnels informed him that before lodging an FIR an inquiry is to be made and no FIR on behalf of opposite party no 2 could be lodged.
The Court further observed that,
Thus, having regard to all the facts and circumstances of the case, the Court is of the considered view that the order passed by the Magistrate dated 10.10.2022 is passed without considering all the facts and circumstances and evidence available on record and the same has been passed under the teeth of the order of the revisional court dated 9.6.2022 whereby earlier order of the trial court dated 03.11.2021 was set aside. It is to be recalled that earlier by passing an order dated 3.11.2021 all the appellants were summoned to face trial under Sections 323, 504, 506 IPC. However by passing impugned order without assigning any reason the appellants have been summoned under Section 307 IPC as well as under 3(1) (10) of SC/ST Act also, under which they were not summoned earlier.
Thus, the Court allowed the appeal filed by the appellants and the summoning order passed by the trial court/ Magistrate dated 10.10.2022 is modified to the tune that the appellants shall stand summoned to face trial for committing offences under Sections 323, 504, 506 IPC. The order of the trial court so far as summoning of the appellants under Section 307 IPC and 3(1) (10) of SC/ST Act is concerned is hereby set aside.
“It is clarified that during the course of trial, if any clinching evidence is produced before the trial court it shall always be open for the trial court to frame charges under appropriate sections and proceed further strictly in accordance with law and consequential procedure may follow but as of now summoning of the appellants under Section 307 IPC and 3(1) (10) of SC/ST Act may not be sustained”, the order reads.