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2016 DIGILAW 3343 (ALL)

ZAFAR AHMAD v. STATE OF U. P.

2016-09-29

VIJAY LAKSHMI

body2016
JUDGMENT : 1. This criminal revision has been preferred against the order dated 12.8.2016, passed by learned Additional Sessions Judge/ Special Judge (SC/ST Act), Kanpur Nagar, in SST No. 83 of 2014, State Vs. Zafar and others, arising out of Case Crime No. 283 of 2008, u/s 323, 504, 506, 452, 325 I.P.C. and 3(1)(X) SC/ST Act, whereby the discharge application of the revisionists has been rejected. 2. Heard learned counsel for the revisionists and learned A.G.A. 3. Learned counsel for the revisionists has submitted that the court below has illegally rejected the discharge application of the revisionists without considering the submissions raised by them regarding non-applicability of SC/ST Act as no finding with regard to the applicability of section 3(1)(x) SC/ST Act has been recorded by the court below. It is further submitted that the trial court while rejecting the discharge application has ignored the statements of the witnesses recorded by the I.O. in which not a single caste related word has been mentioned. Learned counsel has submitted that there is no iota of evidence on record that what specific words were used by the revisionists or what abuses were hurled by them to humiliate the O.P. No. 2/ a member of Scheduled caste, in public view, therefore, no offence u/s 3(1)(x) SC/ST Act, is made out against the revisionists. The learned counsel has submitted that the offence u/s 3(1)(x) SC/ST Act, being triable by the Special Judge/ Additional Sessions Judge, the right of the revisionists for filing an appeal before the Sessions Judge is curtailed in case the trial goes against the revisionist. Hence, it has been prayed that the revision be allowed, the impugned order be quashed and the case be remanded back to the court below to pass a fresh order on the discharge application moved by the revisionists. 4. Learned A.G.A. has vehemently opposed the application. Considered the submissions. 5. A perusal of the FIR lodged by O.P. No. 2 against the revisionists and other accused persons, copy whereof has been annexed as Annexure no. 4. Learned A.G.A. has vehemently opposed the application. Considered the submissions. 5. A perusal of the FIR lodged by O.P. No. 2 against the revisionists and other accused persons, copy whereof has been annexed as Annexure no. 2 to the affidavit filed in support of the revision, shows that it is clearly mentioned in it that the revisionists and other accused persons reached at the house of the complainant and started throwing filthy abuse against the applicant related to mother and sister and uttered the words “lkys pekj uhp dgha ds] lkfcj dk edku [kkyh dj nks] ugha rks rqedks tku ls ekj Mkysaxsa” There after they started beating the complainant with kicks, fists and hockey sticks. One of the accused Nadim also fired from the country made pistol, which he was carrying. It is stated in the FIR that on the alarm being raised, when the public gathered at the spot, the accused persons again used caste related abusive language against the complainant and threatened him to kill. 6. Thus a perusal of the FIR itself shows that prima facie, there is sufficient material that the the accused persons used caste related abusive language against the complainant in view of the public, to humiliate him. As per settled law, at the stage of framing of charge, only prima-facie case is to be seen and even a strong suspicion in the mind of the court is sufficient to frame charge. 7. The Sessions Judge has the power to discharge the accused in the following circumstances; A-where the evidence produced is not sufficient, B- where there is no legal ground for proceeding against the accused, C-where the prosecution is clearly barred by limitation, or D-where he is precluded from proceeding because of a prior judgment of High Court. 8. In, it has Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary and others; 2009 (1) SCC (Cri) 87 been held by the Hon'ble Apex Court that even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. 9. 8. In, it has Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary and others; 2009 (1) SCC (Cri) 87 been held by the Hon'ble Apex Court that even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. 9. In State of Orissa v. Debendra Nath Padhi, 2005 SCC (Cri) 415, the Hon'ble Apex Court has held that at the time of framing charge, what the Trial Court is required to see and consider, are only the Police Papers referred to under Section 173, Cr.P.C. and documents sent with it. The accused cannot be permitted to produce documents to put forth his defence case for purpose of seeking discharge. 10. In Soma Chakravarty v. State (through CBI); 2007 (2) SCC (Cri) 514, it has been observed by the Hon'ble Apex Court that at the time of framing of charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. If on the basis of material on record the Court could form an opinion that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. Whether, in fact, the accused committed the offence, can only be decided in the trial. 11. In Omwati v. State; AIR 2001 SC 1507 , the Hon'ble Apex Court has expressed the clear view that the High Court should not interfere at initial stage of framing the charges merely on hypothesis, imagination and farfetched reasons, which in law amount to interdicting the trial against the accused persons. 12. In wake of the aforesaid legal position and considering the facts and circumstances of the present case and the prima facie evidence available on record, the revision appears to have no force and it is liable to be dismissed at the admission stage itself. The revision is accordingly dismissed.