Nirmal Kant Shukla and Another vs State of Uttaranchal and Another

Servesh Kumar Gupta, J.—The challenge, by way of this criminal miscellaneous application, moved u/s 482 Code of Criminal Procedure is to the order of cognizance dated 9.12.2004 passed by learned Sessions Judge, U.S. Nagar in S.T. No. 346 of 2002 u/s 319 Code of Criminal Procedure whereby the applicants Nirmal Kant Shukla and Dr. Mahendra Singh have been summoned to face trial for the offence of Sections 186/120B/420/191/504/506 IPC r/w Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes {Prevention of Atrocities} Act, 1989.

The facts, in short are that Sri Harak Singh Rawat was posted in 2002 as Tehsildar Sitarganj. While Sri Nirmal Kumar Shukla is a local correspondent of daily newspaper Amar Ujala having his office at Khatima (District Headquarter) and his job was to collect news, edit and sending the same for publication in the newspaper, Dr. Mahendra Singh was a provincial medical services doctor posted in Primary Health Center, Sitarganj.

Allegedly, in order to remove certain encroachments, the hostility developed between the Tehsildar Sri H.S. Rawat and one another miscreant Sri Jaswant Singh. It was also alleged by Tehsildar that applicant Dr. Mahendra Singh was also encroaching certain government land, so he was also hostile to Tehsildar when he was asked to remove the encroachment. This hostility turned into animosity between the Tehsildar on the one hand and Jaswant Singh on the other. The latter was associated by Sri Nirmal Kant and Dr. Mahendra Singh. Tehsildar lodged an FIR on dated 24.6.2002 for the sundry offences of the IPC besides the offence under the SC/ST Act against all these persons.

The investigation was conducted by the Deputy S.P. Rank Officer who submitted a chargesheet in the court against Sri Jageer, Salim Khan and Jaswant Singh, while no offence was prima facilely found to be made out against the applicants.

When the trial proceeded in the court of Sessions Judge, Shri H.S. Rawat was examined in chief by the Court. Sri Rawat made allegations against the applicants in his examination in chief. The application dated 3.6.2004 was moved by District Government Counsel to summon the applicants for the offences and asking their trial along with other co-accused persons. On this application, learned Sessions Judge was convinced and vide his impugned order dated 9.12.2004, took cognizance of the matter and the summons were issued to the applicants asking them to face trial along with other co-accused persons. The applicants have challenged this order of cognizance passed by the learned Sessions Judge by way of this petition u/s 482 Code of Criminal Procedure

Having heard the learned Counsel on behalf of the applicants vociferously and learned Brief Holder for the State, it is divulged from the entire record that the Tehsildar Sri H.S. Rawat was in the habit of recovery of wherewithal from different persons at the name of cleaning of local Baigul river in the area. He also demanded the money from Dr. Mahendra Singh. Dr. Mahendra Singh sometimes conceded to his request but when the pressure was exerted by the Tehsildar for the more and more amount, then complaints were sent by Dr. Mahendra Singh against the Tehsildar to the superior officers. Sri Nirmal Kant Shukla, who was the local correspondent of Amar Ujala also published in the newspaper various activities of the Tehsildar concerned which were not connected with his official duties. This publication made by Sri Nirmal Kant brought Sri H.S. Rawat to disrepute. In the above background, Sri H.S. Rawat nourished a serious grouse against Shri Neeraj Joshi as well as Dr. Mahendra Singh. This fact also finds force from the finding of the Circle Officer as a conclusion in his case diary. Besides, in the statement of Section 161 Code of Criminal Procedure ., Sri H.S. Rawat did not make any specific allegation in the same tenor which he has made in his examination in chief before the Sessions Judge. Rather in his statement before the I.O., when he was specifically enquired in the question answer form, then in reply to question No. 4 to the I.O., he has stated as he do not have any complaint against Sri Nirmal Kant Shukla, only in anger, his name was mentioned in the F.I.R.

It has been argued on behalf of Nirmal kant that when the National Human Rights Commission, in connection of some alleged kidnapping of the servant of Sri Jaswant Singh, the District Magistrate, U.S. Nagar was directed to enquire the matter, then in this background, Sri Nirmal Kant sent the news for publication. So, out of the vengeance, Tehsildar H.S. Rawat lodged an FIR against the applicants.

Learned Counsel for the applicants also relied upon a precedent of Hon''ble Apex Court in the case of "Gorige Pentaiah v. State of Andhra Pradesh and Ors. reported in (2009) 1 S.C.C. 446", wherein it was observed by the Apex Court that where the complaint alleging that the accused abused that name of his caste and intimidated him, then it should be proved that the accused was not of Scheduled Caste person but of upper caste and it should also be proved that the accused was intentionally insulted or intimidated by the accused with the intent to humiliate in a place in public view. It was held that when the basic ingredients of the offence are missing, then the accused cannot be compelled to face the rigmarole of the criminal trial.

In the instant case, the allegations of the witness-Tehsildar are also appears to be a cursory and general nature which appears to have been made not seriously and specifically.

Learned Counsel for the applicants has also relied upon another precedent of the Hon''ble Apex Court in the case of "Sarabjit Singh and Anr. v. State of Punjab and Anr. reported in (2010) 2 SCC 141", wherein the scope of Section 319 Code of Criminal Procedure has been discussed by the Apex Court. It has been held that an order u/s 319 Code of Criminal Procedure should not be passed only because first informant or one of the witnesses seeks to implicate other persons. There should be very specific and cogent reasons to implicate the proposed accused and to satisfy the ingredients of Section 319 Code of Criminal Procedure .- Mere ipse dixit would not serve the purpose. Such evidence must be convincing, at least for purpose of exercise of the extraordinary jurisdiction. So, in these matters, the Courts are required to apply stringent tests and one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned- Mere existence of a prima facie case may not serve the purpose.

So, in view of the above, this Court is also of the view that the allegations of Tehsildar PW1 are also of very shattered and shaky character and do not inspire the confidence so that to exercise this extraordinary jurisdiction by the Sessions Judge u/s 319 Code of Criminal Procedure In this regard this miscellaneous application has force and is liable to be allowed.

The application is allowed. Impugned order of learned Sessions Judge dated 9.12.2004 summoning the applicants Nirmal Kant Shukla and Dr. Mahendra Singh, is quashed.