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2014 DIGILAW 1944 (ALL)

INDU BALA TYAGI v. STATE OF U. P.

2014-07-04

NAHEED ARA MOONIS

body2014
JUDGMENT Hon'ble Naheed Ara Moonis,J. Heard the learned counsel for the applicant, learned A.G.A. and perused the record. The applicant has invoked the inherent jurisdiction of this court for quashing the order dated 9.11.2009 passed by Special Judge, SC/ST Act, Kanpur Nagar, police Station Kotwali, district Kanpur Nagar in S.T. No. 1317 of 1999 arising out of N.C. R. No. 98 of 1995. It was contended at the time of admission of this case that the applicant is aggrieved because the cross version of the same incident has been stayed by this Court in Criminal Revision No. 2505 of 2004 and on this submission the another Bench of this Court directed to list this case along with Criminal Revision No. 2505 of 2004 and both the cases shall be decided on the same day by order dated 4.8.2010. However, there was no interim order in favour of the applicant while passing the aforesaid order dated 4.8.2010. Later on subsequent date merely because the petition was connected with the criminal revision the proceeding of this case has also been stayed. The applicant has filed the aforesaid Criminal Revision No. 2505 of 2004 as stated above against the order dated 1.4.2004 passed by the Special Judge, SC/ST Act/ Additional District & Sessions Judge, Kanpur Nagar in S.T. No. 1316 of 1999 arising out of Case Crime No. 495 of 1999, (State vs. Ram Pal Tyagi and another) whereby the application moved by the opposite party no. 2 under Section 319 Cr.P.C. was allowed and the applicant and one Guddan were summoned under Section 319 Cr.P.C. to face trial for the offences under Section 323 I.P.C. read with Section 3 (1) 10 SC/ST Act. This court by order dated 10.6.2004 while admitting the revision passed the order that the operation of the order dated 1.4.2004 will remain stayed. This court by order dated 10.6.2004 while admitting the revision passed the order that the operation of the order dated 1.4.2004 will remain stayed. The co-accused who have been summoned along with the revisionist Indu Bala Tyagi preferred a 482 petition No. 32488 of 2011 before this Court with the prayer to quash the entire proceedings of S.T. No. 1316 of 2009 and order dated 4.8.2011 passed by the Special Judge, SC/ST Act, Kanpur Nagar arising out of case Crime No. 400 of 1995, under Section 323 I.P.C. read with Section 3 (1) 10 SC/ST Act, police station Kotwali, district Kanpur Nagar and on the submission of the learned counsel for the applicant that the proceeding in S.T. No. 1316 of 1999 has been stayed in the proceedings pending by filing criminal revision by co-accused Indu Bala Tyagi in Revision No. 2505 of 2004, therefore, issuance of non-bailable warrant against them is an abuse of the process of law and on this ground notices were issued to the opposite party no.2 while connecting the case with Criminal Revision No. 2505 of 2004 and in the meantime obtained an order that no coercive steps shall be taken against them pursuant to the order dated 4.8.2011. The aforesaid order was passed by another Bench of this court on 29.9.2011 in Criminal Misc. Application No. 32488 of 2011 preferred by Ram Pal Tyagi and another. In view of the order passed by this court in Criminal Misc. Application No. 24354 of 2010 the aforesaid criminal revision as well as Misc. Application has been connected to be decided together. At the very outset from the arguments advanced on behalf of the applicant/revisionist by the learned counsel it appears that he has tried to circumvent the order passed by the court below by misplacing the facts before this court and have succeeded in obtaining interim orders whereby the proceedings against them are hanging since more than a decade. This court is now delving about the criminal revision preferred by Indu Bala Tyagi, who has alone challenged the order passed by the trial court, allowing the application under section 319 Cr.P.C. of the opposite party no. 2 in S.T. No. 1316 of 1999 (State Vs. Ram Pal Tyagi). This court is now delving about the criminal revision preferred by Indu Bala Tyagi, who has alone challenged the order passed by the trial court, allowing the application under section 319 Cr.P.C. of the opposite party no. 2 in S.T. No. 1316 of 1999 (State Vs. Ram Pal Tyagi). The prosecution case in nutshell is that an N.C.R. No. 97 was registered on 16.10.1995 in respect of an incident of the same day by Chhotey Lal Chaudhary against Tyagi, Tinku, Chunnu that when the former was going to take medicine, the accused persons reached at his house started abusing him and assaulted him with kicks and fists saying that he is posing himself arrogant. He has sustained serious injuries over his neck and in respect of which he has got himself medically examined. An N.C.R. was initially registered under Sections 323 and 504 I.P.C. and after investigation Section 3 (1) (10) SC/ST Act was also added. When the trial was proceeding against Ram Pal Tyagi and Tinku an application was moved under Section 319 Cr.P.C. on 9.5.2003 that during investigation the name of Indu Bala Tyagi and Guddan had been disclosed to the Investigating Officer as they had also participated in the offence but their names have not been included as accused person. In this regard an application was also moved to the Senior Superintendent of Police, Kanpur Nagar but no action was taken and the charge sheet was submitted only against Ram Pal Tyagi and Tinku exonerating other accused persons. Even in the statement of the complainant Chhotey Lal Chaudhary recorded during the trial the name of the aforesaid persons have been mentioned who have committed offence hence they are also liable to be prosecuted. The said application was objected by Ram Pal Tyagi and Tinku @ Praveen that only on the basis of an application moved by the complainant's wife Bimla Chaudhary on 2.11.1995 false and concocted story has been set up showing the involvement of other accused persons when there was no mention about their involvement in the N.C.R., which was lodged by the opposite party no. 2, the statement of the P.W. 1 does not corroborate with the prosecution case and hence Indu Bala Tyagi as well as Guddan has nothing to do with the offence, therefore, the application under Section 319 Cr.P.C. deserves to be dismissed. 2, the statement of the P.W. 1 does not corroborate with the prosecution case and hence Indu Bala Tyagi as well as Guddan has nothing to do with the offence, therefore, the application under Section 319 Cr.P.C. deserves to be dismissed. The learned Magistrate while allowing the application under Section 319 Cr.P.C. has discussed the statement of the complainant at length and held that Smt. Indu Bala Tyagi and Guddan had also participated in the grappling with the complainant who had been hurling vituperative language, Tinku had beaten the complainant and slapped him, in grappling his spectacles broken, he sustained injuries on the face at the same time accused Ram Pal caught hold him and caused injury yet these persons were not charge sheeted but during the course of statement recorded during trial their involvement has been again specifically stated by the complainant, therefore, on the basis of the examination-in-chief the court has ample power to summon the accused persons, thus passed the order dated 10.6.2004 allowing the application under Section 319 Cr. P. C. summoning Indu Bala Tyagi as well as Guddan to face trial under Section 323 I.P.C. and Section 3 (1) (10) SC/ST Act. It is submitted by the learned counsel for the applicant that the order passed by the court below summoning the applicant is absolutely unwarranted and arbitrary as there is no allegations against the revisionist in the N.C.R. registered at the police station in respect of the incident dated 16.10.1995. The report was initially filed only against Ram Pal Tyagi, Pravin Kumar and Anoop Kumar. At the belated stage an application was moved by the informant's wife Bimla Chaudhary that the revisionist had abused the informant. The application related to some other incident regarding which no report was filed by the informant or his wife, hence any subsequent event cannot be considered in the trial relating to the report filed by the first informant in respect of the occurrence dated 16.10.1995. The objections filed by the applicant against the application under Section 319 Cr.P.C. has not been considered at all. There is inconsistency in the statement of the complainant from the prosecution case, hence the order summoning the applicant is not sustainable in the eye of law. To prop up his submission the learned counsel has also relied upon the decision of this Court in Suhail Fasih Vs. There is inconsistency in the statement of the complainant from the prosecution case, hence the order summoning the applicant is not sustainable in the eye of law. To prop up his submission the learned counsel has also relied upon the decision of this Court in Suhail Fasih Vs. State of U.P. and another, 2012 (1) JIC page. 1, Allahabad and as in view of the aforesaid case as has been held, Section 3 (1) 10 SC/ST Act is not at all attracted in the present case as the incident had taken place in the house of the complainant as alleged in the N.C.R. thus, it cannot be said to be a place within public view to show that any derogatory words were uttered by the applicant in public view and that in the aforesaid case this court had found that no sufficient material exists to frame charge under Sections 3 (1) SC/ST Act and no hope for any conviction in trial, hence allowed the revision setting aside the order passed by the court below rejecting the discharge application of the applicant of the aforesaid case. Thus no offence is made out against the revisionist under Section 3 (1) 10 SC/ST Act. He has further placed reliance upon the decision of the Hon'ble Apex Court in Gorige Pentaiah Vs. State of Andhra Pradesh and others, (2009) 1 SCC (Crl.) 446 and submitted that in the N.C.R. no where it has been stated that the accused persons were not members of the scheduled caste community and they had intentionally insulted or intimated with intent to humiliate the complainant. The Hon'ble Apex Court in the aforesaid case had quashed the proceedings as it has been held that the complainant ought to have alleged that the accused was not a member of the scheduled caste or scheduled tribe and the accused has intentionally insulted or intimated and the complainant has been intentionally insulted or intimated by the accused with intent to humiliate in a place within public view. The Hon'ble Apex Court has further held that the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law, therefore, the order passed by the High Court refusing to quash the proceeding was set aside by the Hon'ble Apex Court. Similar question has also been dealt with in a later decision by the Hon'ble Apex Court in the case of Asmathunnisa vs. State of Andhra Pradesh, reported in (2011) 3 SCC (Crl.) 159, hence the proceeding pursuant to the order passed by the court below allowing the application under Section 319 Cr.P.C. against the applicant is liable to be quashed. Per contra the learned counsel appearing for the opposite party no. 2 Sri Manas Bhargava has contended that when the N.C.R. was registered against the accused persons in respect of the incident the name of the applicant and one Guddan has also been disclosed to the police besides mentioning name of other accused persons but on account of the fact that the elder brother of co-accused Ram Pal Tyagi was holding the post of Deewan in the police department and due to his intervention the name of Indu Bala Tyagi and Guddan were not written deliberately by the police and even after investigation they have not been charge sheeted. The court below on the basis of the statement of the complainant recorded as P.W. 1 arrived at conclusion that the case is made out against the applicant and Guddan also, hence rightly passed the order summoning them to face trial and at that stage thread bare analysis is not required as it is purely the satisfaction of the learned trial judge to arrive at a conclusion to be proceeded against those accused who have been not even named can be summoned on the basis of the evidence before him. The discretionary power exercised by the learned trial judge suffers from neither any error nor any illegality, hence does not call for any interference. Though the summoning order dated 1.4.2004 was passed against the applicant and one Guddan but the applicant alone preferred this revision and the proceeding of the trial was stayed. The discretionary power exercised by the learned trial judge suffers from neither any error nor any illegality, hence does not call for any interference. Though the summoning order dated 1.4.2004 was passed against the applicant and one Guddan but the applicant alone preferred this revision and the proceeding of the trial was stayed. The co-accused Ram Pal Tyagi and Praveen Kumar Tyagi when they were not appearing before the court and against whom non-bailable warrants were issued, they preferred a 482 petition in the year 2011 and in the garb that the summoning order has already been stayed in the present revision have obtained an order whereby the non-bailable warrant issued against them was stayed and consequently the entire proceeding, which was going on against them has been stayed. The trial was proceeding against Ram Pal Tyagi, Pravin Kumar @ Tinku, Anoop Kumar who were already facing trial but on the basis of the order passed by this Court they have got the proceeding stayed themselves by order dated 29.9.2011. It is also necessary to point out that the co-accused Guddan who had been summoned in the proceeding under Section 319 Cr.P.C. did not put in appearance before the court nor preferred any petition before this court and in the garb of order dated 10.6.2004 as well as 29.9.2011 he is also enjoying the interim order. Thus there is no illegality or perversity in the order passed by the court below summoning the applicant and co-accused Guddan to face trial hence the instant revision as well as 482 Petition no. 32488 of 2011 deserve to be dismissed. It has further been argued that Smt. Indu Bala Tyagi preferred a 482 Petition No. 243504 of 2010 against the opposite party nos. 32488 of 2011 deserve to be dismissed. It has further been argued that Smt. Indu Bala Tyagi preferred a 482 Petition No. 243504 of 2010 against the opposite party nos. 2, 3 and 4 who have been made as accused in a cross case arising out of N.C.R. No. 98 of 1995 in respect of which the trial was proceeding as S.T. No. 1317 of 1999 and in the garb of that the proceeding of S.T. No. 1316 of 1999 in which Indu Bala Tyagi was summoned and proceeding of which was stayed on 10.6.2004 moved this petition as if the cross case of the accused persons has been stayed filed a petition that the S.T. No. 1317 of 1999 be also stayed on the ground that the two criminal cases relating to same incident ought not to have been tried separately and the court below is concluding the case without determining the cross case. The Criminal Misc. Application No. 24354 of 2010 was filed challenging the order dated 9.11.2009 whereby the court below has directed for recording the defence evidence. The aforesaid order is neither suffering from any error nor from abuse of process of law and it was wrongly interpreted that the learned Special Judge is proceeding with the case without determining the cross case. From the totality of the fact as contained in all the three petitions filed by the accused persons it is evidently clear that they are trying to mislead the court by concealing the material facts on record, hence the 482 petition No. 24354 of 2010 also deserves to be dismissed. There was no interim order passed by the court while connecting this petition with the criminal revision as well as 482 petition, therefore, this petition has no merit and also deserves to be dismissed. I have given anxious consideration to the submission of the learned counsel for the parties. The initial statement of the learned counsel for the applicant was that the order passed by the court below summoning the applicant to face trial cannot be held to be suffering from any error or illegality. I have given anxious consideration to the submission of the learned counsel for the parties. The initial statement of the learned counsel for the applicant was that the order passed by the court below summoning the applicant to face trial cannot be held to be suffering from any error or illegality. The law is well settled with regard to exercise of power under Section 319 Cr.P.C. During trial the court below while recording the statement of P. W. 1 Chotey Lal Chaudhary in examination-in-chief the court found that the involvement of any accused who have not been charge sheeted or even not named in the first information report are found to be involved in the offence, such persons can also be summoned and can be tried together along with accused persons already facing trial. Even though the applicant in the case in hand is not being charge sheeted in the final forum filed against the accused persons, the application for summoning the accused cannot be said to be impermissible in law. The very ambit of Section 319 Cr.P.C. is to empower the trial court to take cognizance against those persons who are alleged to have been involved in the offence but who have not been arrayed as accused by the Investigating Officer while filing the charge sheet, Section 319 Cr.P.C. comes into effect once the evidence comes during the course of trial against the alleged offender and in case there is prima facie case against the alleged offender the court should take cognizance against them. At the juncture of taking cognizance the court should not critically analyse the evidence for the purposes of taking cognizance, the existence of prima facie case is sufficient. It is only at a later stage that the trial court is called upon to appreciate the evidence in proper appreciation. Moreover the duty of the court is not only to protect the innocent but also to punish the guilty persons. In case the jurisdiction under Section 319 Cr.P.C. is not exercised properly by the trial court chances are that those who are alleged in the offence might go scot free. From the perusal of the papers filed in support of the revision challenging the order under Section 319 Cr.P.C. it appears that the accused also filed an objection with regard to application moved under Section 319 Cr.P.C. by the complainant. From the perusal of the papers filed in support of the revision challenging the order under Section 319 Cr.P.C. it appears that the accused also filed an objection with regard to application moved under Section 319 Cr.P.C. by the complainant. At this stage it is necessary to quote the decision of the Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others reported in 2009 (65) ACC 768 wherein it has been held that at the stage there is no question to give an opportunity of hearing to a person who is sought to be summoned or against whom process is sought to be issued. In paragraph 58 it has been categorically mentioned that it is settled law that at the stage of issuing summons or process the court has to see whether there is prima facie case against the persons sought to be summoned or against whom process is sought to be issued. At that stage there is no question of giving opportunity of hearing to such persons. The entire scheme of the Code is that an accused does not come into picture till process is issued. It is further held that it may therefore be said that till summons or process issued against the accused he has no right of audience and in that case it cannot be said that on being satisfied on the basis of examination-in-chief an application under Section 319 of the Code is not maintainable. Sub Section 4 of Section 319 Cr.P.C. expressly appreciate that where the court exercises power under Sub Section (1) and proceed against the person not arrayed as accused the proceeding of such persons shall be commenced afresh and witnesses are heard. After exercise of power by the court under Section 319 Cr.P.C. such added accused would be placed in the same position as the other accused and will get all rights an accused can get under the Code. The proceedings against the added accused shall be commenced afresh and witnesses will be reheard. Their evidence, prior to addition of the accused cannot be used against the accused, therefore, the question of prejudice does not arise at all. It has also been further settled by the Hon'ble Apex Court in its Constitution Bench decision in Hardeep Singh Vs. State of Punjab & others reported in 2014 (2) SCC Crl. 1041. Their evidence, prior to addition of the accused cannot be used against the accused, therefore, the question of prejudice does not arise at all. It has also been further settled by the Hon'ble Apex Court in its Constitution Bench decision in Hardeep Singh Vs. State of Punjab & others reported in 2014 (2) SCC Crl. 1041. There is no legal impediment to summon by looking into the evidence adduced by a witness showing complicity of accused persons. The question with regard to whether the power under Section 319 Cr.P.C. can be exercised only if court satisfies that the accused summoned in all likelihood will be convicted, this issue has already been dealt with by the Apex Court and this controversy has been set at rest, as it would be premature to give finding that there is no chance of conviction of the accused so summoned by the trial court. In so far as the applicability of provision under Section SC/ST Act relating to the applicants the cases cited by the learned counsel has no applicability with the present facts and circumstances of the case, therefore, this court does not find any illegality or any error in the order passed by the revisional court the present petition lacks merit and is accordingly dismissed. The court below is directed to proceed with the case in accordance with law without being prejudiced by any observations made herein above. However, since the matter is quite old it is expected that the court below shall proceed with the case expeditiously as possible and conclude the trial in accordance with law. In case the applicants have not surrendered they may surrender within 30 days from the date of receiving the certified copy of the order and apply for bail, their bail shall be considered by the court below expeditiously keeping in view of the settled law laid down by the Seven Judges' decision of this Court in the case of Amarawati & another Vs. State of U.P. reported in 2004 (57) ALR 290 and is also approved by the Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (2) Crimes 4 (S.C.) after hearing the Public Prosecutor. State of U.P. reported in 2004 (57) ALR 290 and is also approved by the Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (2) Crimes 4 (S.C.) after hearing the Public Prosecutor. The court below shall also make endeavour that no unnecessary adjournment shall be given after the applicants are released on bail and they shall appear on each and every date before the court below so that the trial be concluded to its logical end. All the connected petition are disposed of by this common judgement. A copy of this order be also kept on record in the connected petitions. ——————