Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 1477 (ALL)

Param Singh v. State of U. P.

2023-05-29

MOHD.FAIZ ALAM KHAN

body2023
JUDGMENT : 1. Heard Shri Dharmendra Singhal, learned Senior Advocate assisted by Shri Shivendra Raj Singhal, learned counsel for the appellant, Shri Prashant Kumar Tripathi, learned counsel appearing for opposite party no.2 as well as learned A.G.A. for the State and perused the record. 2. The instant appeal under Section 14-A(1) of the SC/ST (Prevention of Atrocities) Act, 1989 has been filed by the appellant-Param Singh with the prayer to set-aside the impugned judgment and order dated 17.01.2023 passed by learned Special Judge (S.C./S.T.) Act, Amroha in Sessions Case No. 863 of 2022 (State of U.P. vs. Adarsh Kumar Paricharak), arising out of Case Crime No. 121 of 2022, under Sections 504, 506 I.P.C. and Section 3(1)(r) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Police Station Hasanpur, District Amroha and to stay the further proceedings of the aforesaid sessions case. 3. Learned Senior Counsel appearing for the appellant while drawing the attention of this Court towards the impugned order of date 17.01.2023, submits that the Special Court has committed manifest illegality in passing the impugned order, whereby the cognizance has been taken and the appellant has been summoned to face trial under Sections 504, 506 I.P.C. and Section 3(1)(r) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. 4. Elaborating further, it is submitted that after lodging of the first information report by the opposite party no.2, the case was investigated by a senior officer of the police and after investigation the charge sheet was filed only against co-accused Adarsh Kumar and the trial Court vide order dated 18.10.2022 had taken the cognizance under Section 190(1)(b) of the Cr.P.C. and vide order dated 09.12.2022 had issued the process against co-accused Adarsh Kumar and the case was listed for disposal of application moved by the opposite party no.2/informant under Section 190(1)(b) of the Cr.P.C. 5. It is further submitted that by passing impugned order on the basis of an application moved by the opposite party no.2, the Special Court appears to have recalled its earlier order of date 18.10.2022 and 09.12.2022, which is not permissible in criminal law and also keeping in view Section 362 of the Cr.P.C. and have summoned appellant also to face trial under Sections 504, 506 I.P.C. and Section 3(1)(da) of S.C./S.T. Act. 6. 6. It is vehemently submitted that while taking cognizance under Section 190(1)(b) of the Cr.P.C., the Special Court has not considered the material which was collected by the investigating officer during the course of investigation, while the informant in his statement recorded by the investigating officer under Section 161 of the Cr.P.C. had categorically stated that he is having a video of the incident, which would be provided to the investigating officer and has actually provided the same and an opinion with regard to this video clip has also been mentioned by the investigating officer in the case diary, transcript of which has also been placed at page no. 58 of the paper book, wherein the investigating officer has categorically opined that perusal of the video would reveal that no obscene language has been used by the appellant and he is persuading the teachers to go back to their classes and the other teachers are constantly complaining of using abusive language by the co-accused Adarsh Kumar with informant Alok Kumar and also of intimidating him. However, the Principal namely Param Singh (Appellant) is seen sitting with calm and is persuading the teachers to say their version with calm and control. This video is also made part and parcel of the case diary and strangely the Special Court though has noticed this video in the impugned order but has opined, contrary to the fact, that this video is recorded after the incident. Thus, the Special Court has travelled beyond the ambit of Section 190(1)(b) of the Cr.P.C. and appears to have summoned the appellant on the basis of ‘surmises and conjectures’. 7. It is also submitted that the case diary would itself speak that teaching and non-teaching staff of the college wherein the appellant was the ‘principal’ was divided into two rival factions and there were some teachers who are supporting the informant, while there were other ones, who were supporting the appellant and in this scenario, the video clip assumes utmost importance, which has been given to the investigating officer by none other than the informant/opposite party no.2 himself and, therefore, the Special Court should have believed the transcript of the same and in not doing so the trial Court/Special Court has overstepped its jurisdiction conferred under Section 190(1)(b) of the Cr.P.C. 8. It is also submitted that at the stage of taking cognizance under Section 190(1)(b) of the Cr.P.C. and issuing process, the duty of the Special Court was to evaluate prima facie case and sufficient grounds which was not existing so far as the appellant is concerned, in the case diary and when once an order of cognizance was passed, the only recourse available to the Trial Court/Special Court was to act under Section 319 Cr.P.C., if any application is moved thereunder. Thus, the order dated 17.01.2023 is bad in law and is liable to be set-aside/quashed. 9. Shri Prashant Kumar Tripathi, learned counsel appearing for opposite party no.2 supported the impugned order dated 17.01.2023 by stating that at the stage of summoning only a primfacie case is required to be seen and no illegality appears to have been committed by the Special Court. 10. Elaborating further, it is submitted that the investigating officer has not submitted the charge-sheet against the appellant and in doing so has not considered the statement of the independent witnesses recorded during the course investigation, in right perspective. 11. Learned counsel has drawn the attention of this Court towards the statement of the informant as well as of witnesses Hussain Asgar, Narain Yadav, Sanjay Kumar, Mool Chand Kumar, Jagdish Sharan and Mahipal Singh in order to show that there are substantive statements of these witnesses in support of the allegations of the F.I.R. and as only a primafacie case is required to be seen for summoning, no illegality has been committed by the Special Court. 12. Learned counsel for opposite party no.2 has relied on the law laid down by the Hon’ble Supreme Court in ‘Vishnu Kumar Tiwari vs. State of U.P. and others’ reported in (2019) 8 SCC 27 . 13. Learned A.G.A. has also supported the impugned order by submitting that the trial Court has not considered any illegality as its duty was only to assess a primafacie case. 14. Having heard learned counsel for the parties and having perused the record, it appears in the interest of justice to recapitulate the law on the point of duty of Court after receiving police report submitted by investigating officer under Section 173(2) Cr.P.C. 15. Hon'ble Supreme Court in 'Bhagwant Singh v. Commissioner of Police' MANU/SC/0063/1985 held as under:- "4. 14. Having heard learned counsel for the parties and having perused the record, it appears in the interest of justice to recapitulate the law on the point of duty of Court after receiving police report submitted by investigating officer under Section 173(2) Cr.P.C. 15. Hon'ble Supreme Court in 'Bhagwant Singh v. Commissioner of Police' MANU/SC/0063/1985 held as under:- "4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of S. 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of S. 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156 and require the police to make a further report." Where, in either of the these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Informant Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. 'There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under subsection (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report'." 16. In India Carat Pvt. Ltd., M/s. v. State of Karnataka, 1989 CRI. L. J. 963, It is held by Honble Supreme Court that, Upon receipt of a police report under S.173(2) a Magistrate is entitled to take cognizance of an offence under S.190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. L. J. 963, It is held by Honble Supreme Court that, Upon receipt of a police report under S.173(2) a Magistrate is entitled to take cognizance of an offence under S.190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. S.190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under S.190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Ss.200 and 202 of the Code for taking cognizance of a case under S.190(1)(a) though it is open to him to act under S.200 or S.202 also. 17. In Pakhandu v. State of U.P. reported in 2002 CRI. L. J. 1210, the case relied on by the applicant a Divisional Bench of this court opined as under:- "Where cognizance has been taken under S. 190(1)(b), Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub-sec. (2) of S. 202, Cr.P.C. shall have no application. Where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :-(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. (2) of S. 202, Cr.P.C. shall have no application. Where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :-(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under S. 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under S. 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Ss. 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. Where the Magistrate decides to take cognizance of the case under S. 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Ss. 200 and 202 of the Code, and consequently the proviso to S. 202(2), Cr.P.C. will have no application. For forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at the stage to make use of any material other than investigation records, unless he decides to take cognizance under S. 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under S. 200. From the above it is absolutely clear that proviso to sub-sec. It is not permissible for him at the stage to make use of any material other than investigation records, unless he decides to take cognizance under S. 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under S. 200. From the above it is absolutely clear that proviso to sub-sec. (2) of S. 202 of the Code will apply only to a case where the Magistrate has taken cognizance under S. 190(1)(a) and has opted to hold inquiry under S. 202 after examining the complainant and witnesses present, if any, under S. 200, Cr.P.C." In Minu Kumari and another Vs. State of Bihar and others; MANU/SC/8098/2006 : 2006 (4) SCC 359 , Supreme Court said as under: "11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused." 18. In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294 , Hon'ble Single Judge of this High Court Court held as under : "Where the magistrate decides to take cognizance under section 190(1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e., protest petition and affidavits while taking cognizance under section 190(1)(b) Cr.P.C., the impugned order is vitiated." 19. In Abhinandan Jha and Ors. v. Dinesh Mishra MANU/SC/0054/1967 : AIR 1968 SC 117 : (1967) 3 SCR 668 , the question arose as to whether when a report is submitted that there is no material that any case is made out for sending the Accused for trial, the Magistrate can direct the police to submit a charge-sheet. This Court took the view that the Magistrate cannot compel the Police to change their opinion. This Court took the view that the Magistrate cannot compel the Police to change their opinion. However, it was held that the Magistrate is free to not accept such report and he may take suitable action. The Magistrate may direct further investigation Under Section 156(3) of the Code. It was further held that it would be in a case where the Magistrate feels that the investigation is unsatisfactory or incomplete. It may be also in a case where there is scope for further investigation. 20. In H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) MANU/ SC/0126/1980 : (1980) 4 SCC 631 , the Police submitted a final report. However, the Magistrate disagreed with the conclusion of the Police and directed issue of process upon taking cognizance of the case. A contention was taken that the Magistrate acted illegally in not recording statements on oath of the complainant and the witnesses Under Section 200 of the Code and the Magistrate must, therefore, be treated as having taken cognizance upon the Police report for which he was not competent as it was not a report Under Section 173, but a final report within the meaning of Section 169. It was contended that the Magistrate had only two options before him -(i) he could either order further investigation. (ii) He could also take cognizance as upon a complaint but for the same the statements of the complainant and witnesses had to be recorded. Hon’ble Supreme Court held as under: “6. It is seen from the provisions to which we have referred in the preceding paras that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present Under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint Under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process Under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation Under Section 156(3). The police will then investigate and submit a report Under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence Under Section 190(1)(b) and straight away issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report Under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present Under Section 200 of the Code of Criminal Procedure and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation Under Section 156 (3) and received a report Under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding Under Sections 200, 203 and 204. The mere fact that he had earlier ordered an investigation Under Section 156 (3) and received a report Under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding Under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation Under Section 156(3) and receives a police report Under Section 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence Under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence Under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses Under Section 200. If he adopts the third alternative, he may hold or direct an inquiry Under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.” 21. Hon’ble Supreme Court in ‘Vishnu Kumar Tiwari vs. State of U.P. and others’ reported in (2019) 8 SCC 27 (The law relied on by learned counsel for opposite party no.2) has held as under:- “20. In Gangadhar Janardan Mhatre v. State of Maharashtra MANU/ SC/0830/2004 : (2004) 7 SCC 768 , this Court reiterated that Magistrate can, faced with a final report, independently apply his mind to the facts emerging from investigation and take cognizance Under Section 190(1)(b), and in this regard, is not bound to follow the procedure Under Sections 200 and 202 of the Code for taking cognizance Under Section 190(1)(b). It was, however, open to the Magistrate to do so. 21. In regard to the filing of protest petition by the informant who filed the First Information Report, it is important to notice the following discussion by this Court: 6. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in ‘Bhagwant Singh v. Commr. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in ‘Bhagwant Singh v. Commr. of Police’ stressed on the desirability of intimation being given to the informant when a report made Under Section 173(2) is under consideration. The Court held as follows: ‘4…….There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Subsection (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. "When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. (See M/s. India Carat Pvt. Ltd. v. State of Karnataka and another). The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh case (supra) that, where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard. (Emphasis supplied) 22. Perusal of the record in the background of the legal position enumerated herein-above, it would be evident that a first information report was lodged by the opposite party no.2 on 09.03.2022 at Police Station Hasanpur, District Amroha against co-accused Adarsh Kumar and instant appellant pertaining to the alleged incident occurred on 09.03.2022 alleging therein that on the distribution of some medicines a verbal altercation had taken placed between the co-accused Adarsh Kumar (Class IVth Employee of the School) and the informant of the instant case, who is a teacher. It is also stated in the F.I.R. that the co-accused Adarsh Kumar has intimidated to slap the informant and also to shoot him and when he was screaming, the other teachers had also accumulated in front of the office of the principal (appellant) as the principal was sitting in his office. It is also alleged when the informant had gone to the principal’s room for reporting the entire matter to him, , he (principal/appellant) became angry and started abusing the informant and also addressed him with castiest remarks and called co-accused Adarsh Kumar inside his office and instigated him to launch an assault on the informant. Name of various teachers have been mentioned in the F.I.R., who are shown to be present at the scene of crime. The first information report appears to have also signed by Shri Narain Yadav, Shri Sanjay Kumar, Hussain Asgar and Azam Ali, while Mool Chand Kumar, Pravendra Kumar, Bhagwan Das, Mahipal Singh and Jagdish Sharan, who were shown present in the college. 23. The first information report appears to have also signed by Shri Narain Yadav, Shri Sanjay Kumar, Hussain Asgar and Azam Ali, while Mool Chand Kumar, Pravendra Kumar, Bhagwan Das, Mahipal Singh and Jagdish Sharan, who were shown present in the college. 23. Perusal of the case diary would reveal that the statement of the informant Alok Kumar was also recorded by the investigating officer, wherein he fortified the allegations of the F.I.R., however, has stated that he is having a video of the incident filmed on his mobile phone, which he will provide to the investigating officer. The investigating officer appears to have recorded the statements of Hussain Asgar, Narain Yadav, Sanjay Kumar, Mool Chand Kumar, Jagdish Sharan and Mahipal Singh, who are all ‘Assistant Teachers’ in the school/college and they all have stated that apart from the co-accused Adarsh Kmar, the instant appellant had also intimidated the informant and also addressed him with casteist remarks. 24. Perusal of the case diary would also reveal that the investigating officer has also recorded the statement of Sandeep Kumar, Abhishek Chaudhary, Vipul Kumar, Chandra Prakash Sharma, Navneet and Shekhar Sharma, who were posted as ‘Lecturers/Teachers/Class IVth Employee’ in the college and they all have stated that the altercation had started between Alok Kumar (informant) and Adarsh Kumar (coaccused) on the basis of distribution of medicines and Adarsh had used some foul language, a complaint of which was lodged with the appellant (principal) and at about 1:30 pm. Mahipal Singh, Narain Yadav, Alok Kumar, Sanjay Kumar, Hussain Asgar, Pravendra Kumar, Jagdish Sharan, Mool Chand Kumar, Azam Ali Khan and Bhagwan Das formed a group and by making noise entered into the office of the principal and started misbehaving, while the principal (appellant) was constantly asking them to go to their classes and the principal (appellant) has not stated any objectionable word or foul language to anyone. 25. Thus, it is reflected from the material, which has been collected by the investigating officer that there are two factions in the college so far as the teachers of the college are concerned and one faction was supporting the informant and they by their statements have corroborated the allegations of the F.I.R., while there are other teachers and staff of the college, who were in favour of the appellant and they have denied use of any foul language, etc. by the principal (appellant). 26. by the principal (appellant). 26. In the considered opinion of this Court, when the teaching and non-teaching staff of the college/school were so divided, the video, which is stated to have been filmed by the informant in his statement recorded under Section 161 Cr.P.C., assumes significance and it has not been disputed before this Court that the transcript of the video which has been mentioned by the investigating officer at an appropriate place in the case diary is truthful and this transcript shows that no obscene or foul language or address with castiest remarks by the instant appellant is seen in the video clip filmed by the informant, rather the investigating officer in the transcript had recorded in the case diary pertaining to the video clip given by the informant that the appellant is seen in the video persuading the teachers to go back to their classes and an altercation was going on between the principal and the teachers pertaining to the incident, which had taken place between the Alok Kumar (Informant) and Adarsh Kumar (co-accused) and the teachers are seen accusing that Adarsh Kumar had misbehaved with the informant and had also intimidated him. This video has been sent by the informant himself through WhatsApp to the investigating officer and in the considered view of this Court, having regard to the divided lines of the teaching and non-teaching staff of the college, the significance of this video may not be neglected or undermined. 27. Perusal of the impugned order would also reveal that the trial Court/Special Court has noted this video clip, as recorded by the investigating officer, but has opined that this video clip appears to be filmed after culmination of the occurrence, as the informant had stated the incident to have occurred at 11:00 am. while the investigating officer has stated the occurrence to have occurred at 1:30 pm. In this regard the statements of the witnesses who have recorded their statements in favour of the informant have stated that incident had occurred in two parts; at first at 11:00 am. when an altercation had taken place between the informant and co-accused Adarsh Kumar and, thereafter, it is stated that the teachers who had accumulated, had gone to the office of the principal for the purpose of complaining about the conduct of the co-accused Adarsh Kumar, wherein the second incident shown to have occurred. when an altercation had taken place between the informant and co-accused Adarsh Kumar and, thereafter, it is stated that the teachers who had accumulated, had gone to the office of the principal for the purpose of complaining about the conduct of the co-accused Adarsh Kumar, wherein the second incident shown to have occurred. Therefore, the incident, as per the statement of the witnesses, who had recorded their statements in favour of the informant also appears to have occurred in two phases and it is with regard to the second phase or second incident, the complicity of the instant appellant is shown to have came into light and it is with regard to the second incident the video clip has been filmed by informant and provided to investigating officer wherein no illegal act is shown to have committed by appellant. 28. Thus, I do not find any force in the submissions that the video clip given by the informant is of the period when incident had already culminated. It is noteworthy that allegations against the instant appellant have been alleged with regard to the second incident which had taken place allegedly in the office of the principal. Thus, in the considered opinion of this Court, there was no sufficient material before the Special Court on the basis of which after taking cognizance of the offences under Section 190(1)(b) of the Cr.P.C., process may be issued against the appellant and the investigating officer was right in submitting ‘Final Report’ in favour of the instant appellant. 29. Thus, the impugned summoning order so far as the same is concerned with appellant-Param Singh appears to have been passed without there being sufficient material in the case diary and is liable to bet set-aside. 30. In result, the appeal is allowed and the impugned summoning order dated 17.01.2023, so far as the same is concerned with the summoning of the appellant to face trial under Section 504, 506 I.P.C. and Section 3(1)(r) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, is hereby set-aside.