PRIYA SINGH @ GUDIYA VS STATE OF U.P. THRU. PRIN. SECY. … ON 26 JULY, 2019
| Citation | |
| Date of Judgment | 26 July, 2019 |
| Court | HIGH COURT OF ALLAHABAD, LUCKNOW BENCH |
| Appellate | Priya singh @gudia |
| Respondent | State of U.P. Thru, prin, secy, |
| Bench | Hon’ble mohd. Faiz alam khan. J. |
| Referred | U/s.323, 504, 506 IPC & section 3(1) (x) SC/ST Act |
FACTS ABOUT THE CASE –
Brief facts giving rise to this appeal are that an application was moved by the victim herself addressed to the District Magistrate, Lucknow alleging that on 3.5.2014 at about 3.00 A.M. in the morning when her husband and Dewar were away in connection with their employment, accused persons after entering her house started abusing and also addressed her with castiest remarks in public view. Accused Vinay Singh also addressed her with abusive language and outraged her modesty by tearing apart her clothes. It is further stated that all accused persons physically assaulted her and her sister. On a hue and cry made by her, her neighbour, namely, Neeraj, Pushpa and mother of Soni came at the scene and saved her. The accused persons were continuously abusing and addressing the informant with castiest remarks and filthy abuses and also threatened them of their lives.
ISSUE ARISES IN THE CASE –
The case of Gudiya vs State of UP thru. Prin. Secy. was decided on July 26, 2019, by the Allahabad High Court. The case concerned the issue of whether a magistrate can take cognizance of an offence even if the police report under Section 173(2) of the Code of Criminal Procedure (CrPC) is to the effect that no case is made out against the accused.
ARGUMENTS -(APPELLATE SIDE)
Learned counsel for the appellant while pressing the appeal submits that the court below while summoning the appellant has materially erred and did not follow the dictum of law as propounded by the Hon’ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial.. It is further submitted that the court below has not taken into consideration the material placed before the trial court along with charge sheet and therefore the trial court has materially erred in summoning the appellant.
It is next sub mitted that no offence as described in the FIR or in the statement of the witnesses recorded during the course of investigation has taken place and the whole story as narrated in the FIR as well as in the statement of the witnesses has been cooked and manufactured, therefore the court below has materially erred in summoning the appellant, as such the order is liable to be set aside.
Learned AGA, however, opposes the contention of learned counsel for the appellant on the ground that the court below keeping in view the charge sheet and material submitted therewith, after applying judicial mind and finding sufficient material on record, summoned the appellant along with other co-accused persons to face trial and therefore there is nothing illegal so far as the order of summoning passed by the court below.
Having heard learned counsel for the parties and having perused the record, it is apparent that the contents of the FIR so far as the offences, wherein the appellant has been summoned to face trial, is concerned, find corroboration with medical evidence available on record as there is an injury report on record pertaining to Ms. Nankai Devi wherein five injuries have been shown to have been sustained by her. Perusal of these injuries shows that these injuries may not be self inflicted. All submissions put forth by learned counsel for the appellant before this Court are pertaining to factual aspect of the matter and can only be considered by a criminal court in a full-fledged criminal trial, and it is not a stage where minute scrutiny of the evidence should have been made by the Court below.
At this juncture it is fruitful to have a look so far as the law pertaining to summoning of the accused persons, by taking cognizance on a police report filed under section 173 of the CrPC , is concerned and the perusal of the case law mentioned herein below would clearly reveal that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the material collected by the investigating officer results in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial. This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the Law on the subjects
ARGUMENTS (RESPONDENT SIDE)
The first and foremost contention of the respondent-accused is that summoning an accused is a serious matter and the summoning order must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto and in the present case, the order for issue of process without recording reasons was rightly set aside by the High Court. In support of their contention that the summoning order must record reasons showing application of mind, reliance was placed upon Pepsi Foods Ltd. The second limb of submission of the learned senior counsel appearing for the respondent-accused is that there has to be an order indicating the application of mind by the Magistrate as to the satisfaction that there are sufficient grounds to proceed against the accused irrespective of the fact that whether it is a charge sheet by the police or a private complaint.
It is well-settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well-settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused.
In Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19) the expression “cognizance” was explained by this Court as “it merely means ‘become aware of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.” It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at
the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.
The learned senior counsel appearing for the respondent accused relied upon various judgments to contend that while taking cognizance, the court has to record the reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. The learned senior counsel appearing on behalf of the respondent-accused relied upon judgments in the case of Pepsi Foods Ltd. and Mehmood Ul Rehman to contend that while taking cognizance, the Court has to record reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the 12 accused for that offence. On the facts and circumstances of those cases, this Court held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. However, what needs to be understood is that those cases relate to issuance of process taking cognizance of offences based on the complaint. Be it noted that as per the definition under Section 2(d) Cr.P.C, ‘complaint’ does not include a police report. Those cases do not relate to taking of cognizance upon a police report under Section 190(1)(b) Cr.P.C. Those cases relate to taking cognizance of offences based on the complaint. In fact, it was also observed in the case of Mehmood Ul Rehman that “under Section 190(1)(b) Cr.P.C., the Magistrate has the advantage of a police report; but under Section 190(1)(a) Cr.P.C., he has only a complaint before him. Hence, the code specifies that “a complaint of facts which constitutes an offence”.
JUDGEMENT –
In this view of the matter, the appeal is devoid of merit and is dismissed and orders dated 6.4.2016 as well as order dated 30.3.2019 whereby Bailable Warrant were issued, passed by Special Judge SC/ST Act, Lucknow is affirmed.
At this stage it is submitted by Ld. Counsel for the Appellant that Appellant is a lady and it is apprehended that the moment she will surrender before the trial Court she will be sent to prison and disposal of her bail Application may take time. Needless to say that disposal of bail applications in any case is the prerogative and discretion of the Court concerned and the same can not be circumcised by passing any order in this regard. Suffice is to say that since appellant is willing to participate in the trial, therefore it is directed that in case the appellant appears and surrenders before the court below within 30 days from today and apply for bail, her prayer for bail may be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as approved by Hon’ble Apex Court reported in 2009 (3) ADJ 332 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of 30 days form today or till the surrender of appellants before trial court, whichever is earlier, no coercive steps shall be taken against the appellant in the above mentioned case
CONCLUSION OF THE CASE –
Coming to the facts of the present case it is apparent that it is alleged in the F.I.R. that on 3.5.2014 at about 8.30 A.M. in the morning when husband and Dewar of the informant were away, accused persons entered her house and started abusing and also addressed her with castiest remarks in public view. The allegations were also with regard to the fact that all accused persons physically assaulted her and her sister and they also outraged their modesty. On a hue and cry made by her many persons came at the scene and saved her. The investigating officer found the allegations partially true in investigation and submitted charge sheet under Sections 323, 504, 506 IP?C and 3(I) (X) SC/ST Act . Contents of the FIR so far as the offences, wherein the appellant has been summoned to face trial, is concerned, find corroboration with medical evidence available on record. There is also an injury report of Smt Nankai Devi wherein five injuries have been shown to have been sustained by her. Keeping in view the aforesaid settled legal position that at the stage of cognizance and summoning, the material or evidence collected during investigation and produced with the Charge Sheet ( Report Under Section 173 Crpc) is to be seen only for the purpose of proceeding further and also that at the stage of summoning meticulous examination of the evidence or material produced with the Report Under Section 173 of the Code is not required and sufficiency of the evidence or material is to be seen only the purpose
of proceeding further, I do not find any substance in the appeal. There appears no illegality in the impugned summoning order dated 6.4.2016 of the court below whereby the appellant and other co-accused persons have been summoned to face trial.
“This article is written by Vidhi Bharti student of Shri Ramswaroop memorial university 3rd year student, intern at legal vidya. “
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