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Rajendra Agarwal & Others v/s State of U.P. & Another


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    Criminal Appeal No. 1937 of 2018

    Decided On, 26 July 2019

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE MOHD. FAIZ ALAM KHAN

    For the Appellant: Dharmendra Kumar Trivedi, Advocate. For the Respondent: Govt. Advocate, Ajaiy Kumar Mishra, Kapil Dev Chaubey, Advocates.



Judgment Text

Heard learned counsel for the appellants as well as Shri Pradeep Tiwari, learned A.G.A. for the State and learned Counsel for the respondent No.2.

This criminal appeal has been filed by the appellants against the impugned summoning order dated 14.09.2018 passed by learned Second Additional Sessions Judge, Lakhimpur Kheri in relation to Complaint Case No. 41/2017, (Ravindra Kumar Vs. Rajendra Agrawal & others), whereby the appellants have been summoned to face trial for offences, under Sections 323/147, 504, 506 I.P.C. & Section 3(1)(x) SC/ST Act, Police Station Bheera, District Lakhimpur Kheri.

Brief facts necessary to dispose the instant appeal are that, an application under Section 156 (3) of the Cr.P.C. was moved by respondent No.2 against the appellants and other person requesting to direct the concerned police station to lodge a report and investigate with the allegations that, Chiraunji Lal is the real brother of respondent No.2, who is owner in possession of an agricultural land comprising Gata No. 932, 933, 934 and the crop of Sugarcane was standing on this agricultural land at the time of the incident.

It is further stated that, on 12.05.2017 at about 8:00 in the morning, he was informed that about 20 to 30 persons armed with illegal fire arms is ploughing and destroying his sugarcane crop. He along with his mother Rukmani Devi, sister Ramkumari, Aunti Shakuntla Devi and brother-in-law Rajendra Prasad reached his agricultural land and found that the accused persons were ploughing his field on which, the crop of Sugarcane was standing. Accused Anil Agrawal was holding rifle, while Suneel Goel @ Sonu was possessing a Revolver in their hands and all other persons were armed with ''lathi, danda'. When he asked the accused persons to refrain from destroying his crop, they assaulted him and his family members. Anil Agrawal fired a shot from his Rifle towards him and Suneel Goel @ Sonu threatened her Mother by showing Revolver and asked other co-accused persons to tear apart the clothes of his mother, on which, accused Pancham Singh and Shiv Kumar tore the clothes of his mother, sister and aunty and also address them with casteous remarks in public view. It is further stated that, the accused persons/appellants also assaulted his mother, sister and aunty with ''lathi, danda' and also threatened them of their lives. His mother Rukmani Devi and Aunty Shakuntla Devi have sustained injuries due to the ''marpeet' of appellants.

The above mentioned application of the respondent No.2 was treated as complaint by the Magistrate, who after recording the statement of the Respondent No.2, under Section 200 of the Cr.P.C., and statement of witnesses namely Shakuntla Devi and Rukmani Devi, under Section 202 of the Cr.P.C. found sufficient ground to proceed further in the matter and summoned the appellants to face trial for the offences, under Sections 323/147, 504, 506 I.P.C. & Section 3(1)(x) SC/ST Act. Aggrieved by the same, instant appeal has been preferred by the accused persons/appellants.

While referring to the summoning order passed by the Court below, learned counsel for the appellants submits that, the Court below has materially erred in summoning the appellants to face trial, while it was a clear case of counter-blast and the Court below has ignored this vital aspect of the matter. While referring to a Non Cognizable Report lodged by Shri Rajendra Prasad against Ravindra, Mewaram, Chiraunji Lal and Suntan, it is stated that, this Non Cognizable Report was lodged by Shri Rajendra Prasad against respondent No.2 on 10.05.2017 and as a counter-blast, the instant complaint/application has been filed on 20.05.2017, wherein a false incident of 12.05.2017 has been shown.

It is further submitted that, earlier also a Non Cognizable Report was lodged by appellant No.1/Rajendra Agrawal against respondent No.2-Ravindra Kumar, Mewaram and Hariram, under Sections 352, 504 I.P.C. on 14.04.2017.

It is further submitted that to falsely implicate the appellants, the respondent No.2 managed to prepare a false injury reports of Smt. Rukmani Devi and Smt. Shakuntla Devi. The injuries alleged to have been sustained by the aforesaid two ladies are superficial and may be self-inflicted.

It is further submitted that it was apparent on record that, parties are inimical to each other, while referring to many documentary evidence filed by learned counsel for the appellants as well as by learned counsel for the respondent No.2 in their pleadings, it is submitted that it was apparent on record that the parties are having a serious dispute, pertaining to the ''Patta (lease) of agricultural land and due to the pendency of dispute pertaining to agricultural land, the instant proceedings have been initiated. However, the Court below has ignored this fact and in a cursory way without dwelling deep into the matter, summoned the appellants to face trial.

It is further submitted that allegations of the complaint are patently absurd, and could not be believed in the background of above mentioned facts and, therefore, the summoning order is bad in law and the same be set-aside.

Learned A.G.A., however, opposes the contention of learned counsel for the appellants and stated that, at the stage of summoning the proposed accused persons, only a primafacie case is required, and the sufficiency of evidence is required only to proceed further not for the conviction of the accused persons, therefore, there appears no illegality, so far as the summoning order passed by the Court below concerned.

Learned Counsel for the respondent No.2 overwhelmingly submits that, there is no illegality or irregularity in the summoning order of the Court below and the trial Court has passed the summoning order, keeping in view the allegations, as contained in complaint supported by the evidence of complainant and two injured witnesses and also the injury reports of the two ladies namely Smt. Rukmani Devi and Smt. Shakuntla Devi.

It is further submitted that, the respondent No.2 belongs to a Scheduled Caste community and his brother Chiraunji Lal was in possession over the land in question, and a lease was granted in his favour, under Section 122-B (4-F) of the U.P.Z.A. and L.R. Act on 07.06.2011. He has submitted a copy of the order of Sub Divisional Officer, Palia District Kheri dated 07.06.2011. It is further submitted that, at relevant time, the crops of Wheat and Sugarcane were standing over the land in question, and the same have been destroyed by the appellants by ploughing the field. It is further submitted that, a dispute pertaining to the lease of that land is existing in between the parties and now a Revision is pending before the Additional Commissioner (Judicial), Lucknow Division in which, stay order dated 05.07.2016 has been passed and is still in existence, a copy of the stay order has been placed on record. By referring to the complaint, the statement of the witnesses and complainant as well as the injury reports, a copy of which has been made available on record through counter affidavit, he submits that, there is ample evidence on record, which reflects that the appellants have committed the offence and there was sufficient material before the Court below to summon the appellants.

Having heard learned counsels for the parties, it will be convenient to have a look so far as the law pertaining to summoning of the accused persons in a complaint case is concerned and perusal of the case law mentioned herein below would clearly show 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 allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court.

In C.H.C.L.Employees Stock Option Trust VS. India Infalin Ltd. 2013(4) SCC 505 It was empasised by the Honble Supreme Court that summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. 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. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.

In AIR 1998 S.C. 128, M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others held as under:

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is primafacie committed by all or any of the accused."

In AIR 2012 SUPREME COURT 1747,Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr" the Apex Court has held that "10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."

In AIR 1976 SUPREME COURT 1947, Smt. Nagawwa v/s Veeranna Shivalingappa Konjalgi & others, It is held by The Apex Court that "It is well settled by a long catena of decisions of this Court 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 he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merit or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one."

"4.It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not."

"It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a primafacie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statement of the witness recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."

In AIR 2015 SUPREME COURT 923,Sunil Bharti Mittal v. Central Bureau of Investigation (Three Judges Bench) Hon,ble Apex Court held as under:

"45. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accusedaand formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad-in-law if the reason given turns out to be ex facie incorrect."

In AIR 2012 SUPREME COURT 1921,Nupur Talwar v. Central Bureau of Investigation and Anr it is propounded by the Hon'ble Supreme Court that "Moreover, this Court has held in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. [(1976) 3 SCC 736 :(AIR 1976 SC 1947)] thatwhether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. were good or bad, sufficient or insufficient, cannot be examined by the High Court in the revision. All that the High Court, however, could do while exercising its powers of revision under Section 397 Cr.P.C when the order issuing process under Section 204 Cr.P.C. was under challenge was to examine whether there were materials before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes have been issued under Section 204 Cr.P.C ".

If the facts of the present case are visualized and scrutinized within the limited scope provided in view of the above mentioned settled legal position, it reveals that the appellants as well as respondent No.2 and his brother Chiraunji Lal were having dispute over the lease (Patta) made in favour of the respondent No.2, under Section 122-B (4-F) of the U.P.Z.A. and L.R. Act, pertaining to Gata No. 932, 933, 934 and earlier appellant No.1 on two occasions had lodged non-cognizable reports against respondent No.2 and his relatives. Instant matter, wherein the appellants have been summoned and the two Non-cognizable reports, which have been lodged by appellant No.1/Rajendra Agrawal is with regard to the cultivation of the same land, ''Patta' (lease) of which has allegedly been made in favour of respondent No.2. Allegations and counter-allegations have been levelled by the both parties against each other by lodging above two non-cognizable reports and also by lodging the instant complaint, wherein the appellants have been summoned. Therefore, it is established that, both parties are having bad blood against each other and they are inimical. Therefore, keeping in view the fact that, enmity is a double aged weapon and due to the enmity, false case may also be cooked-up as well as the actual commission of crime may also be committed, only on the basis of enmity case of prosecution could not be doubted.

The allegations in the complaint are pertaining to the ploughing of field and destroying the crop of Sugarcane standing on the field of the brother of opposite party No.2 and also are pertaining to physical assault made by the appellants on two ladies and also of insulting them by tearing apart their clothes. These allegations have found support by the statement of complainant, recorded under Section 200 of the Cr.P.C. as well as of his witnesses namely Smt. Shakuntla Devi and Smt. Rukmani Devi, who both have corroborated the factum of physical assault, criminal intimidation as well as destruction of the crop standing on the disputed land. Moreover, the respondent No.2 through counter affidavit has brought on record, the injury reports of Smt. Shakuntla Devi and Rukmani Devi, both these injured ladies were examined on 15.05.2017 at 4:40 pm., Two injuries namely Contusion and Scabed abrasion on left wrist and left index finger apart from complaint of pain has been found on the person of Shakuntla Devi, while an abraided contusion on right little finger and complaint of pain on hip and right hand were found on the person of injured Rukmani Devi. There are many documents made available by both the parties, pertaining to the fact that earlier the ''Patta' of disputed land was allotted in favour of the brother of respondent No.2 Chiraunji Lal and, thereafter, it was cancelled and was allotted in favour of appellant No.1. However, the same was also cancelled vide order dated 19.05.2016, and an Appeal against that order is also pending in the Court of Commissioner, (Judicial), but it has to be noticed that the Court below has not summoned the appellants for any offence, which might have been committed, pertaining to the land in question, but the summoning of the appellants have been done by the Court below, pertaining to the offences of causing hurt by making unlawful assembly, giving threats and intimidation under Sections 147/323, 504, 506 I.P.C. and also offences under Section 3(1)(x) of the SC/ST Act and keeping in view the facts and evidence of the complainant and witnesses together with the injury reports, a prima facie case is certainly made out for summoning of the appellants in the above mentioned sections. Keeping in view this settled position, pertaining to the summoning of accused persons to face trial and also the fact that, at th

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e stage of summoning, the material or evidence produced by the complainant is only to be seen for the purpose of proceeding further and also that, at the stage of summoning, meticulous examination of the evidence or material produced by the complainant is not required, and only it is to be seen, whether sufficient material is available to proceed further, I do not find any illegality in the impugned order of the Court below. The summoning order dated 14.09.2018 of the Court below, whereby the appellants have been summoned to face trial in different Sections of the I.P.C. as well as for offences of S.C./S.T. Act appears to have been passed on the just appreciation of facts and law and there appears no necessity to interfere in the same. In the aforesaid facts and circumstances of the case, I do not find any force in the Appeal. Therefore, the appeal lacks merits and is dismissed and order dated 14.09.2018 passed by Special Court is affirmed. At this juncture, learned counsel for the appellants overwhelmingly submits that, they want to participate in the trial of the case, but they are apprehended that the moment they will appear before the Court below for the disposal of their bail application may take time and they will unnecessarily be detained in Jail. It has been requested that, the Subordinate Court be directed to dispose of the bail application moved by them, expeditiously. Keeping in view the request of learned counsel for the appellants, it is directed that, in case the appellants appear and surrender before the Court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid down by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (30 ADJ 332 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the surrender of appellants before trial Court, whichever is earlier, no coercive steps shall be taken against the appellants in the above mentioned case. It is clarified that, the period of 30 days provided for the appellants to surrender before the Court below will not be extended further, on any ground.
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25-10-2019 Mukesh Ramdevji Agarwal & Another Versus Balmukund Dhruvanarayan Lohiya (Huf) & Others Supreme Court of India
25-10-2019 K. Rajendra Prasad & Others Versus State of Andhra Pradesh & Others High Court of Andhra Pradesh
18-10-2019 Virendrakumar Agarwal & Others Versus The State of Maharashtra & Another High Court of Judicature at Bombay
18-10-2019 Naveen Kumar Agarwal Versus State of Madhya Pradesh High Court of Madhya Pradesh
18-10-2019 Rajendra Agrawal Versus State of Bihar & Others High Court of Judicature at Patna
16-10-2019 Agarwal Coal Corporation Pvt. Ltd. Versus Sun Paper Mill Ltd. & Another National Company Law Appellate Tribunal
11-10-2019 New India Assurance Co. Ltd. Versus Rajendra Kumar & Another Madya Pradesh State Consumer Disputes Redressal Commission Bhopal
04-10-2019 Hemant Mohan Agarwal Versus Housing Development Finance Corporation Ltd. & Another High Court of Judicature at Bombay
25-09-2019 Kalpana Rajendra Kothari & Others Versus Santosh Arvind Jangam & Another In the High Court of Bombay at Aurangabad
20-09-2019 Prateek Agarwal Versus Richa Garg High Court of Judicature at Allahabad
11-09-2019 Bajarang Shyamsunder Agarwal Versus Central Bank of India & Another Supreme Court of India
11-09-2019 Krushna Shivaji Patil Versus Parmanand Rajendra Patil & Another In the High Court of Bombay at Aurangabad
11-09-2019 Sunil Kumar Agarwal Versus State of U.P. & Another High Court of Judicature at Allahabad
05-09-2019 M/s. Sugesan Transport Pvt. Ltd., Rep. by its Director, Kanthibai Rajendra Sheth Versus M/s. E.C. Bose & Company Private Limited, Kolkata & Others High Court of Judicature at Madras
03-09-2019 Raju @ Rajendra Versus State of U.P. High Court of Judicature at Allahabad
03-09-2019 Kuldeep Agarwal Versus State of Uttarakhand & Others High Court of Uttarakhand
30-08-2019 Mukta Agarwal Versus Vineet Gupta High Court of Punjab and Haryana
26-08-2019 Sajan Kumar Agarwal Versus State of Sikkim & Another High Court of Sikkim
26-08-2019 Sajan Kumar Agarwal Versus State of Sikkim & Another High Court of Sikkim
22-08-2019 Electronics & Controls Power Systems Private Limited, Rep. herein by its Managing Director, Rajaram Ramamurthy Versus WeP Peripherals Limited, Rep. herein by its Magaing Director, Ram Agarwal High Court of Karnataka
21-08-2019 Narasimhamurthy Versus Suresh Chandra Gupta, Dead by his Lrs: Ravi Agarwal, Bengaluru & Another High Court of Karnataka
20-08-2019 Rajeev Agarwal Versus Union of India & Others High Court of Delhi
16-08-2019 Rajendra Mahadeorao Chaudhary Versus Gajanan Keshavrao Bore In the High Court of Bombay at Nagpur
14-08-2019 Sudera Realty Private Limited Versus Om Prakash Chachan (Agarwal) & Others High Court of Judicature at Calcutta
06-08-2019 Rajendra Pandit Versus Union of India, Through the Secretary Ministry of Communication, New Delhi & Others Central Administrative Tribunal Guwahati Bench Guwahati
06-08-2019 Rajendra Kumar Goyal & Another Versus South City Project (Kolkata) Ltd. & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
05-08-2019 Rajendra Versus The State of Maharashtra & Others In the High Court of Bombay at Aurangabad
02-08-2019 Meenu Agarwal Versus District Magistrate Pauri Gharwal & Others High Court of Uttarakhand
30-07-2019 N. Rajendra Reddy Versus The Block Development Officer, Sholingur Panchayat Union, Vellore District & Others High Court of Judicature at Madras