Kutubuddin Alias Kutubu And Another v. State of U.P. and Another

Neutral Citation No. - 2024:AHC:103029

Court No. - 46 Case :- CRIMINAL APPEAL No. - 3495 of 2024

Appellant :- Kutubuddin Alias Kutubu And Another

Respondent :- State of U.P. and Another

Counsel for Appellant :- Ashwini Kumar Singh

Counsel for Respondent :- Dhirendra Kumar Srivastava,G.A.

Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri Ashwini Kumar Singh, learned counsel for the appellants, Sri Akash Patel, Advocate holding brief of Sri Dhirendra Kumar Srivastava, learned counsel for respondent no.2 and Sri Ajay Singh, learned A.G.A.-I for the State and perused the record.

3. This criminal appeal under Section 14-A(1) of SC/ST Act has been filed by the appellants- Kutubuddin Alias Kutubu and

Arvind, against the impugned summoning order dated 9.1.2024 passed by the learned Special Judge (SC/ST Act), Chandauli in Complaint Case No.52 of 2021 (Deena Nath vs. Kutub and others), under Sections 323, 504, 506 I.P.C. and Section 3(1) (Da) SC/ST Act, Police Station Shahabganj, District Chandauli.

4. The argument of learned counsel for the appellants is that the injuries as noted by the doctor of Deena Nath are simple in nature. It is further submitted that implication of the appellants in the present matter is mala fide. It is submitted that an NCR No.37 of 2021, under Section 323, 504 I.P.C. was lodged by Zamila Khatun w/o Kurban Ansari on 12.7.2021 because she was abused and beaten by Deena Nath and due to the same the present complaint has been lodged against the appellants and other accused persons.

5. Learned counsel for the appellants has further submitted that the present complaint/application under Section 156(3) Cr.P.C. was filed against nine accused persons, but the trial court has summoned only the appellants, whereas the seven other accused persons named therein have not been summoned which would also go to show the falsity of the prosecution case and the effort to falsely implicate the accused persons. It is submitted that as such the order summoning the appellants dated 9.1.2024 and the proceedings be quashed.

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6. Per contra, learned counsel for respondent no.2 and learned A.G.A. have vehemently opposed the prayer for quashing. It is submitted that in the present matter Deena Nath has received injuries and there are allegations of assault on him. It is submitted that so far as two injuries being injury nos. 2 & 3 are concerned, the same were kept under observation whereas the three other injuries were opined to be simple in nature. It is submitted that in such circumstances it cannot be said that no offence is made out and the incident is a false incident of which the application U/s 156(3) Cr.P.C. was moved with false allegations.

7. After having heard learned counsels for the parties, perusing the record, it is evident that appellants are named in the application under Section 156(3) Cr.P.C. The same was directed to be treated as complaint case after which statement of complainant under Section 200 Cr.P.C. and witnesses, namely, Dharmendra/CW-1 and Ram Chandra/CW-2 were recorded under Section 202 Cr.P.C. Deena Nath is an injured in the matter, who as per medical examination report received five injuries on his person out of which two injuries were kept under observation. In so far as mala fides are concerned, the same cannot be looked into at this stage in view of the judgment of the Apex Court in the case of Central Bureau of Investigation Vs. Aryan Singh etc. : Criminal Appeal Nos. 1025-1026 of 2023, decided on 10.04.2023 and State of M.P. Vs. Awadh Kishore Gupta : (2004) 1 SCC 691.

8. Further in view of the judgment of the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others :

1992 Supp (1) SCC 335; State of Bihar Vs. P. P. Sharma :

1992 Supp (1) SCC 222; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Zandu Pharmaceuticals Works Ltd. Vs. Mohammd Shariful Haque : (2005) 1 SCC 122; M. N. Ojha Vs. Alok Kumar Srivastava : (2009) 9 SCC 682; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Md. Allauddin Khan Vs. State of Bihar : (2019) 6 SCC 107; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706; Rajeev Kourav Vs. Balasaheb & others : (2020) 3 SCC 317; Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh : (2020) 12 SCC 467 and Ramveer Upadhyay Vs. State of U.P. : 2002 SCC Online SC 484 that exercise of power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be

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taken by the High Court before embarking to scrutinize the complaint /FIR / charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception. It was further held that criminal proceedings cannot be nipped in the bud.

9. In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate : (1998) 5 SCC 749, the Apex Court relying upon the ratio laid down by it in Bhajan Lal's case (supra) has held that power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. In the case of Daxaben Vs. State of Gujarat : 2022 SCC Online SC 936 the Apex Court has held that in exercise of power under section 482 of the Cr.P.C., 1973 the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence.

10. In the case of U.P. Pollution Control Board Vs. Bhupendra Kumar Modi : (2009) 2 SCC 147, Fiona Shrikhande Vs. State of Maharashtra : (2013) 14 SCC 44, Sonu Gua Vs. Deepak Gupta and others : (2015) 3 SCC 424

it has been held that while issuing summons to accused u/s 204 Cr.P.C. the Magistrate has only to see whether allegations made in complaint are prima facie sufficient to proceed against the accused. Magistrate need not enquire into merits or demerits of case.

11. In the cases of Bhushan Kumar Vs. State of NCT of Delhi : (2012) 2 SCC 424, Nupur Talwar Vs. CBI : (2012) 11 SCC 465, Dy. Chief Controller Vs. Roshanlal Agarwal : (2003) 4 SCC 139 and Kanti Bhadra Shah Vs. State of W.B. : (2000) 1 SCC 722 it has been held by the Apex Court that in determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. There is no legal requirement imposed on a magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of

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summons.

12. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. relying upon the judgements rendered by the Apex Court in the cases of

State of Haryana and Others Vs. Bhajan Lal and Others :

(1992) Suppl (1) SCC 335 and Arnab Manoranjan Goswami Vs. State of Maharashtra and Others : (2021) 2 SCC 427 has held that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.

13. Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while exercising powers under Section 14-A (1) of SC/ST Act and only the prima facie prosecution case has to be looked into and as it is. Evidence needs to be led to substantiate the defence of the accused.

14. Looking to the facts of the case, the prima facie allegation against the appellants and the law as stated above, no case for interference is made out. The present criminal appeal is thus

dismissed.

Order Date :- 10.6.2024 Vikas

(Samit Gopal,J.)

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