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2024 DIGILAW 1365 (ALL)

Ajay Kumar Yadav v. State of U. P.

2024-05-20

MANOJ BAJAJ

body2024
JUDGMENT Manoj Bajaj, J. Appellants-Accused have filed this appeal under Section 14A(1) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 for setting aside the impugned order dated 16.11.2023 passed by the Special Judge (SC/ST Act), Bhadohi in Sessions Trial No. 318 of 2021; titled State v. Omkar Nath Yadav and others, arising out of Case Crime No. 59 of 2021, under Sections 147, 148, 149, 323, 504, 325, 452, 336, 427, 506 IPC and Section 3(1)(r),(s) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Chauri, District Bhadohi, whereby the charges against the accused have been modified. 2. Learned counsel for the appellants has argued that the opposite party no. 2 had falsely implicated the appellants in Case Crime No. 59 of 2021, under Sections 147, 148, 149, 323, 504, 325, 452, 336, 427, 506 IPC and 3(2)(va) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, wherein after investigation, a final report under Section 173(2) Cr.P.C. dated 18th August, 2021 was filed. He submits that the appellants had jointly moved an application dated 27th February, 2023 before the Special Court (SC/ST Act), Bhadohi at Gyanpur, seeking their discharge in the case, but the application was declined vide order dated 4th March, 2023, and aggrieved against it, an appeal bearing No. 3743 of 2023; titled Ajay Kumar Yadav and 6 others v. State of U.P. and another, was filed before this Court. He submits that during the pendency of the appeal, an interim order was also passed in favour of the accused-appellants on 30th May, 2023, wherein it was directed that the further proceedings of the trial shall be subject to the final order passed in this proceeding. The said order by this Court is Annexure No. 6. 3. Learned counsel has pointed out that finally the said appeal was decided on 28th October, 2023, wherein the order dated 4th March, 2023 was partly set aside, thereby discharging the appellants for alleged commission of the offence punishable under Section 3(2)(va) SC/ST Act, however, the remaining offences was maintained. Learned counsel submits that despite the order dated 28th October, 2023, the trial court has passed the impugned order dated 16th November, 2023, whereby the appellants have been charged for alleged commission of offence punishable under section 3(1)(r),(s) SC/ST Act. Learned counsel submits that despite the order dated 28th October, 2023, the trial court has passed the impugned order dated 16th November, 2023, whereby the appellants have been charged for alleged commission of offence punishable under section 3(1)(r),(s) SC/ST Act. According to the learned counsel, the trial court has again committed an error of law, because once no offence under SC/ST Act is made out, the framing of charge against the appellants under section 3(1)(r) (s) SC/ST Act is not sustainable. He prays that the impugned order be set aside and the appellants be discharged for the substituted offence under SC/ST Act as well. 4. Pursuant to the notice issued by this court vide order dated 30th January, 2024, the opposite party no. 2- complainant was served, but despite various opportunities, no counter affidavit has been filed. Today, no one has put in appearance on behalf of the complainant-opposite party no. 2. 5. Though, the counter affidavit has been filed by the State and according to the learned State Counsel, the impugned order is based upon the correct appreciation of the material on record, therefore, no interference is called for by this Court. 6. After hearing the learned counsel for the parties and considering their submissions, this Court finds that the discharge of an accused or framing of charges against the accused is a consolidated exercise contemplated by Code of Criminal Procedure under Section 227 and Section 228 Cr.P.C., in respect of the trial before the Court of Sessions, but in the present case, the material has been examined in pieces. Once the investigation is concluded by the Investigating Officer and final report under Section 173(2) Cr.P.c. filed, it is incumbent for the trial court to analyze the record of case to ascertain, if, a prima facie case is made out for proceeding with the trial, and if, the said requirement is fulfilled, the trial commences against the accused with the framing of charges, whereas if, the material on record is insufficient, the trial court is justified in discharging the accused. The said procedure has been given a go-bye in this case, as the application for discharge moved by the accused has been entertained by the trial court for adjudication, though the same was dismissed on 4th March, 2023. 7. The said procedure has been given a go-bye in this case, as the application for discharge moved by the accused has been entertained by the trial court for adjudication, though the same was dismissed on 4th March, 2023. 7. At this juncture, this Court deems it appropriate to observe that once the trial court found that the case of the accused is not fit for discharge, the charges against the accused ought to have been framed at that stage itself. But, that was not done, and the accused carried an appeal before this Court bearing No. 3743 of 2023, wherein the following interim order was passed on 30th May, 2023:- "Service report is awaited. List on 9.6.2023, as fresh, along with service report. The further proceeding of the case pending before the court below shall be subject to the final order passed in this proceeding." 8. A reading of the above order would show that this Court, while entertaining the appeal, had not stayed further proceedings before the Special Court, and it resulted in framing of charges against the accused-appellants vide order dated 28th July, 2023, but for the reasons best known to the appellants or the counsel for the State, who was also assisted by the counsel for the complainant, this material development of framing charges against the accused was never brought to the notice of this Court. Because, had it been pointed out by any of the parties, when the appeal was finally decided on 28th October, 2023, the precious time of the Court would have been saved, by avoiding to adjudicate the appeal, which had been rendered infructuous, as the impugned order dated 4.3.2023 stood merged in the order dated 28.7.2023. 9. Concededly, the appellants-accused never raised any grievance against the order dated 28th July, 2023, and accepted the framing of charges against them, thus, the appellants cannot derive any benefit from the order dated 28th October, 2023, which is based upon incomplete facts and concealment. An identical issue erupted before the Hon'ble Supreme Court in Moti Lal Songara v. Prem Prakash alias Pappu and another reported in (2013) 9 SCC 199 , wherein noticing the concealment of the order framing charges against the accused, the Hon'ble Supreme Court observed as under:- "19. An identical issue erupted before the Hon'ble Supreme Court in Moti Lal Songara v. Prem Prakash alias Pappu and another reported in (2013) 9 SCC 199 , wherein noticing the concealment of the order framing charges against the accused, the Hon'ble Supreme Court observed as under:- "19. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the respondent-accused is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the Revisional Court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Anyone who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expression faisi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the Revisional Court. It can be stated with certitude that the respondent-accused tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum. 20. The High Court, as we have seen, applied the principle "when infrastructure collapses, the superstructure is bound to collapse". However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand. ................xxxxxxxx..............." 10. Since, the order dated 28th October, 2023 is passed subsequent to the order dated 28.7.2023 framing charges against the accused, therefore, the trial court was left with no other option, but to modify the said order dated 28th July, 2023. The alteration in charge through order dated 16.11.2023 is a result of concealment by the appellants. Similar is the conduct of the State, as it also acted carelessly by not pointing out this material fact before this Court. Thus, it is a fit case where accused as well as the State both deserve to be saddled with costs. 11. The alteration in charge through order dated 16.11.2023 is a result of concealment by the appellants. Similar is the conduct of the State, as it also acted carelessly by not pointing out this material fact before this Court. Thus, it is a fit case where accused as well as the State both deserve to be saddled with costs. 11. The above sequence of events and the orders passed by this Court as well as the trial courts on different occasions would show that the appellants are agitating the same issue time and again, whereas this practice is not recognized by the procedure contained in Criminal Procedure Code, 1973. 12. Consequently, in view of the above discussion, this Court does not find any reason to show any indulgence to the appellants-accused. Since, the impugned order dated 16th November, 2023 is a result of the material concealment by the accused, therefore, the same is set aside, and it is ordered that the trial against the accused shall continue in terms of the order dated 28th July, 2023, which stands accepted by the appellants. 13. Accordingly, the appeal is disposed of and both, the appellants as well as the State of U.P. are burdened with a cost of Rs. 50,000/- each, to be deposited within one month before the Registrar General, High Court, Allahabad, who will, thereafter, forward the same to the High Court Legal Services Committee. In case, the amount of costs is not deposited within the stipulated time, the Registrar General, High Court, Allahabad shall take necessary steps for recovery of the amount, in accordance with law. 14. The Registrar General and the High Court Legal Services Committee be informed of this order.