Dr. Divya Nand Yadav And Another v. State of U.P. and Another

Court No. - 93.................. ........................A.F.R. Case :- CRIMINAL APPEAL No. - 9188 of 2022

Appellant :- Dr. Divya Nand Yadav And Another

Respondent :- State of U.P. and Another

Counsel for Appellant :- Ram Kishore Pandey

Counsel for Respondent :- G.A.,Janardan Yadav

Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Sri Ram Kishore Pandey, learned counsel for the appellants, Sri Janardan Yadav, learned counsel for respondent no. 2 and Sri O.P. Mishra, learned AGA for the State.

2. By means of this criminal appeal, an order dated 09.11.2022 passed by the Special Judge (SC/ST Act), Azamgarh in complaint case no. 131 of 2021 (Prem Kumar vs. Dr. Divya Nand Yadav and Others), Police Station Jiyanpur, District Azamgarh, whereby the appellant accused persons have been summoned under Sections 323, 504, 506 IPC and Section 3(1)(da) and 3(1)(dha) of the SC/ST (Prevention of Atrocities) Act, is under challenge.

3. The relevant facts as emerging from record are as below:-

The complainant Prem Kumar filed an application under Section 156(3) Cr.P.C. against the present revisionists with the allegations that on account of old enmity, the accused persons, one of whom is a doctor by profession and is having relations with underworld and land mafia came to him on 15.03.2021 at about 07.00 in the evening and began hurling abusive and derogatory words relating to his caste and began to assault him; the complainant rushed inside to save himself, however the assailants followed them and attacked the complainant and women of the house; they left after extending threats to his life; the application was registered as complaint case and statement of witnesses under Sections 200 and 202 Cr.P.C. have been recorded; the court, after considering the evidence given on behalf of the complainant passed the summoning order which is now under challenge before this court.

4. Besides other arguments, it has been vehemently contended on behalf of the appellants that the police submitted a final report that the story put up by the complainant is false and concocted one; the real facts are that about a month before the alleged incident, the complainant and his family members were challaned under Section

151 Cr.P.C. over a dispute relating to a land; Shashi Yadav late wife of Dr. Divya Nand Yadav (appellant no.1) had purchased a plot no. 256 and her name was mutated in revenue records; Prem Kumar-the complainant (respondent no. 2) has been illegally interfering in the peaceful possession of the appellants; this complaint on the basis of an application under Section 156(3) Cr.P.C. with a false story, has been filed with ulterior motives and to sully the image of appellant nos. 1 and 2, who run a private nursing home; It is argued that the entire proceedings is malafide and gross abuse of process of law.

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5. This is a settled position of law that at the stage of summoning in a complaint case, the court has to confine itself to the evidence produced on behalf of the complainant. It may be noted that at this stage the accused or a proposed accused have no say in the matter. They do not have any opportunity to present their side before the trial court. They do not have any opportunity to cross-examine the witnesses and the court is, therefore handicapped to some extent to check the veracity of the allegations. The court ordinarily has no option but to depend upon the statement of the witnesses. But this impediment is sought to be diminished by law itself. It may be noted that section 200 Cr.P.C. speaks of examination of complainant and the witnesses present. The provisions says that the Magistrate shall examine on oath the complainant and the witnesses present, if any. Experience shows that though not always but in a number of cases, for various reasons, which need not be elaborated here, the complainant is not examined by the Magistrate himself instead the complainant either just gives a statement on his own or is led by his counsel to parrot a story which suits him and such statement acquires legal sanctity as statement under Section 200 Cr.P.C.

6. There is certain purpose behind enacting this provision in this manner. When a Magistrate who is trained in law, himself asks the questions he may elicit the facts which are nearer to truth. Obviously then there are much better chance to check the veracity of allegations, the evaluation of evidence before him and thereby come to the right conclusion for summoning the real culprits and at the same time putting his foot down that no innocent person is summoned unnecessarily. The purpose is lost when this power is not utilized.

7. The same is true for the examination of witnesses under Section

202 Cr.P.C. Section 202 Cr.P.C. speaks of an inquiry to be conducted by the Magistrate himself, if it thinks fit (or direct for investigation by a police officer) for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 202 Cr.P.C. and Section 202 (2) are as below:-

"(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and

either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding

whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

"(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take

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evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath."

8. It is clear that the examination of witnesses under Section 202 Cr.P.C., as is popularly known, is in fact part of inquiry which a Magistrate may conduct in cases he does not find enough of grounds to immediately proceed to summon the accused. Though not always, this part of procedure too has become a routine matter. In almost all the cases based on complaint, the witnesses are examined without realizing the fact that such a step shall be unnecessary if the Magistrate/the court concerned is satisfied that prima facie case is made out, on the basis of the examination of the complainant and his witnesses at previous stage of the case i.e. section 200 Cr.P.C. Where the Magistrate finds himself short of requisite level of 'satisfaction' then only he may decide to further probe into by ordering for examination of more witnesses. The reasons behind jumping to the next step of Section 202 Cr.P.C. have gone in to oblivion in the rush of work and almost routinization of things.

9. The phrase occurring in Section 202 Cr.P.C. "inquire into the case himself" enjoins the Magistrate that he actually plays its part by examining the witnesses himself, rather than depending upon the statements which might be clouded, cryptic, obscure or ambiguous and sometime very direct and bald. The experience in courts strengthens the impression that more often then not unsupervised, one sided statement may have more to conceal than to reveal. It is said that law is a living being. It grows and develops according to the exigencies of the times. It will not be out of context to mention that the superior courts have observed in a number of cases that the trial courts ought to be quite alert when they decide to take cognizance or summon the accused persons, may be at the stage of Section 204 Cr.P.C. or otherwise. The superior courts have consistently kept on cautioning the courts to be quite circumspect, careful, alert and wakeful while putting the legal machinery in motion. The vicissitudes of cases, peculiar facts and situations do impact the interpretations of law and contribute towards the developments and progress of legal arena.

10. There cannot be two opinions on the settled legal position that the Magistrate has to decide whether prima facie any case is made out or not, before proceeding to summon the accused persons. The meaning of prima facie case must be understood in the right perspective. There may be cases where the Magistrate finds that in literal sense of the words occurring in the statements the ingredients of an offence are there but he feels not so satisfied with them. The Hon'ble Supreme Court in para-11 of the judgment passed in Fiona

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Shrikhande vs. State of Maharashtra and Another; (2013) 14 SCC 44, observed as below:-

"At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to "prima facie satisfy" whether there are "sufficient grounds to proceed" against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint." The Supreme Court has used the pharse arriving at "prima facie satisfaction" whether there are "sufficient grounds to proceed"! Section 204 Cr.P.C. nowhere said that the Magistrate shall take cognizance and summon the accused if prima facie case is made out, instead Section 204 Cr.P.C. says that the Magistrate may take cognizance if there is sufficient ground for proceeding, hence in my view the prima facie case must be construed to mean "prima facie satisfaction" arrived at by the Magistrate. In other words the Magistrate shall proceed only if he finds that there is sufficient ground for the same. This is not to say that the proposed accused shall have any right to be heard at that stage or that any evidence in defence can be considered. It merely means that the Magistrate shall assess all the material before it and apply its mind to find out whether time has come to proceed and take cognizance. In that view of the matter the Supreme Court in the case as aforesaid has instead of using the word "prima facie case" has found fit to use the phrase

"prima facie satisfaction" and of course this satisfaction has to be arrived at while acting within the four corners of law i.e., by adopting the procedure as provided under Sections 200 and 202 Cr.P.C. In may view, the Magistrate is not powerless to examine the truth or falsehood of the case made in the complaint. And to fully utilize this power the Magistrate has to play its role of examining himself the complaint and his witnesses under Sections 200 Cr.P.C., and if required to further inquire into by calling more witnesses and examining them or even by ordering investigation. The steering wheel of the inquiry cannot be left at the hands of the complainant. For the reason that at that stage, the accused has no say in the matter and the court has no opportunity to hear the other side, therefore he ought to remain very cautious, circumspect and alert. The broad probabilities or improbabilities of the story of course may be seen at this stage.

The relative scope of Sections 203 and 204 Cr.P.C. were noted and considered by the Supreme Court in Pepsi Food Limited and another vs. Special Judicial Magistrate and others; (1998) 5 SCC 749, is as below:-

"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

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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 prima facie committed by all or any of the accused."

The Supreme Court emphasized the need that the Magistrate should not sit like a silent spectator.

11. Though as far as this case is concerned and keeping in mind that the court cannot go beyond the material on record, some facts are revealed which should have alerted the Magistrate/the court concerned, while exercising his powers. The court did not consider the fact that there has not been any medical evidence of physical assault; PW1 has referred to the fact that he was raising construction on his own land when the incident happened; Admittedly there lied a dispute over land; His mother (PW1) and his brother (PW2), who were examined under Section 202 Cr.P.C have supported the statements given by the complainant and said that Dr. Divya Nand Yadav, Shashi Yadav (wife of appellant no. 1) and one Shiva Nand beat them mercilessly. Except those bald statements uncorroborated with any medical evidence, there is nothing worth mention on record; On the other hand there is a report from concerned police station which says that Dr. Divya Nand Yadav (appellant no. 1) had purchased a land situated near the land of the complainant; The appellants got his land measured by a team of revenue officials and it was found that almost 2 biswas of land was illegally encroached upon by the complainant, on which a wheat crop was standing; The report also says that the complainant and his family members took away some of the harvested wheat crop lying there. Shashi Yadav W/o Dr. Divya Nand Yadav, therefore lodged an FIR case crime no. 116 of 2021 under Sections 379, 504 and 506 IPC; therefore this false case has been lodged by the complainant against them for ulterior motives.

12. Moreover certain other facts have come before this court which cannot be ignored. The complaint in the instant case has been lodged by Prem Kumar against Dr. Divya Nand Yadav, Dr. Shivanand Yadav and Shashi Yadav alleging an incident which took place on 15.03.2021 at about 7.00 in the evening. With strikingly similar allegations another complaint by one Vindhyachal Ram has been lodged regarding an incident which allegedly took place on 22.02.2021 at about 10.00 in the morning alleging that when he was

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raising construction, Shashi Yadav came to his place claiming the land as her own and that Dr. Divya Nand Yadav, Shivanand and one Akhilesh Sharma came there abusing them with casteist words and the complainant too mentioned that earlier also Dr. Divya Nand Yadav had filed a (false) case of stealing the wheat crops against him. Admittedly on the basis of aforesaid complaint by Vindhyachal Ram (grandfather of the instant complainant-Prem Kumar), another complaint case no. 129 of 2021 is pending against the revisionists, in which they have been summoned exactly for the same kind of offences and that another Criminal Appeal No. 9201 of 2022 filed by Dr. Divya Nand Yadav and 2 others challenging the summoning order is pending.

13. Though it is agreed that at the stage of appeal, other side has an opportunity to be heard and point out or bring before the court the facts more clearly, which the trial court, obviously lacks, hence the appellate court is better equipped in coming to the right conclusion. I must add a word of caution here. The aforesaid advantage available to the appellate court, especially in a complaint case cannot be a justification, for the trial court, who has not played its part in a diligent manner to pass orders which stand on shaky grounds. Firstly, by not asking the questions himself and by not playing an active role as is expected from a Magistrate/court while conducting an inquiry. Secondly, on the basis of whatever material which has come before the trial court, the trial court shall arrive at a satisfaction whether there is sufficient ground to proceed or not; The Magistrate/court cannot draw a conclusion of prima facie case by depending upon literal meaning of statements. A dias has to be held by a Magistrate/Judge not a robot.

14. The fact of the matter is that the court shall not proceed in a mechanical or a routine manner. It shall apply its mind, which is called a judicial mind and discretion as well. The court/the Magistrate, though shall not go deep into the evidence given and shall not weigh the evidentiary value in a meticulous manner. Except this rider, there is no other obstacles before the court below for arriving at the "prima facie satisfaction" a word which can be equated with the word "prima facie case".

15. In my view, the judicial process should not became a tool for oppression or avoidable harassment. I am of the opinion that there was not sufficient material to proceed to take cognizance and summon the accused persons, hence the impugned order is hereby,

set aside. Order Date :- 20.4.2023 #Vikram/-

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