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Judgment
Hon'Ble Santosh Rai, J.
Heard learned counsel for the applicants, Shri Rajesh Bohra, learned counsel for O.P. No.2 and learned A.G.A. for the State.
This application under section 482 of CrPC, has been preferred against the order dated 28.02.2017 passed by the learned Special Judge (SC/ST Act), Jalaun at Orai, in Complaint Case No. 11/2017 (Naresh Kumar Dohre v. Rajkumar and others), whereby the applicants Rajkumar, Ram Swaroop, Smt. Gayatri Devi, Deepu and Dalpat Singh were summoned to face trial under Sections 147, 148, 452, 323, 504, 324, 325 IPC and Section 3(1)(x) of the Act.
The complainant, Naresh Kumar Dohre, belongs to the Chamar caste, a Scheduled Caste, and is a resident of Village Gadhar, P.S. Kotwali Orai, District Jalaun. His case is that on 11.10.2013, at about 8:00 p.m., while he was at his house, the applicants Rajkumar, Dalpat Singh, Smt. Gayatri Devi, Deepu and Ram Swaroop came to his house armed with lathi, danda and axe. Rajkumar is alleged to have abused him by his caste, asking how a person of a low caste dared to answer him back, and to have said that he should not go to his field. Upon the complainant replying that the field lay vacant and many people passed through it, the accused are alleged to have abused him further with caste-based and filthy words, and to have exhorted each other to beat him. The complainant ran towards his house. The accused chased him, entered the house and assaulted him with lathi, danda and axe. His wife Basanti and daughter-in-law Vindeshwari, who came to rescue him, were also assaulted. The complainant and his wife sustained serious injuries. Mohar Singh, Kishunlal, Bhagwan Singh, Raju and others, attracted by the cries, saw the incident.
When the complainant approached the police station, his report was not registered. Instead, it is alleged, he and others were challaned under Section 151 Cr.P.C. He then moved an application under Section 156(3) Cr.P.C. before the learned Chief Judicial Magistrate, Jalaun, who by order dated 03.12.2013 directed registration and investigation. Case Crime No. 3680/2013 was registered under Sections 147, 148, 323, 504, 506, 452 IPC and Section 3(1)(x) of the Act.
The Investigating Officer submitted a final report dated 29.01.2014. The complainant filed a protest petition, which the learned Court treated as a complaint. The complainant recorded his statement under Section 200 Cr.P.C. and produced PW-1 Smt. Vindeshwari, PW-2 Smt. Basanti, PW-3 Kishunlal, PW-4 Raju, PW-5 Bhagwan Singh Yadav and PW-6 Surendra Yadav under Section 202 Cr.P.C. Documentary evidence was also filed, including the carbon copy of the F.I.R./application, the copy of N.C.R. No. 24, the injury report and X-ray report of the complainant, and the caste certificate issued by the Tehsildar.
By the impugned order dated 28.02.2017, the learned Special Judge, after hearing the complainant's counsel and perusing the case diary and the oral and documentary evidence, found a prima facie case against the five applicants and summoned them. The remaining persons named in the protest petition, being police officers, were not summoned, the learned Judge finding no prima facie case against them.
Learned counsel for the applicants submitted that the impugned order is mechanical and non-speaking and the investigation found the allegations false and supported by statements of independent villagers. Furthermore, the protest petition is directed substantially against police officers and does not disclose any offence by the applicants and the complainant's version is an afterthought. Further, he relied upon the judgement of Apex Court in Rajnish Kumar Biswakarma vs. State of NCT of Delhi and another, Criminal Appeal No.4680 of 2024 and State of Punjab vs. Davinder Pal Singh Bhullar and others etc, Criminal Appeal Nos.753 to 755 of 2009, the relevant para of State of Punjab (supra) is extracted below:
“72.It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case.”
Learned A.G.A. and learned counsel for O.P. No.2 opposed the appeal and submitted that the impugned order is a reasoned order passed after examination of the complainant and the witnesses. Furthermore, the injuries are supported by medical evidence and the issues raised are matters of defence to be tested at trial. They further submitted that charge has already been framed and the trial, now at the stage of cross-examination of PW-1, should not be stalled further. Further, learned counsel for O.P. No.2 relied upon the judgement of the Apex Court in Ratilal Bhanji Mithani vs. State of Maharashtra and others, (1979) 2 SCC 179.
At the stage of summoning under Sections 200 to 204 Cr.P.C., the Special Judge is required only to be satisfied that there is sufficient ground for proceeding. The enquiry is limited to whether a prima facie case is made out on the material before the court and the truth, sufficiency and probative value of that material are matters for trial. The court at this stage does not weigh the evidence as it would on a final appraisal, nor does it act as a court of appeal over the facts.
In Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, the Apex Court has held as under:
“28.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 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. The 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.”
In Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, the Apex court has held as under:
“13.Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued.
14.Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.
16.In Nagawwa v. Veeranna Shivalingappa Konjalgis, (1976) 3 SCC 736, this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that:
"5.... Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused."”
In Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420, the Apex Court has held as under:
“20.The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. to set in motion the process of criminal law against a person is a serious matter.
21.Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected.
22.The steps taken by the Magistrate under Section 190(1) (a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt. no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.”
An appellate or revisional court, in turn, will not interfere unless the order suffers from a material illegality, perversity, or lack of jurisdiction.
The impugned order records that the injury report of the complainant, Naresh Kumar, notes four injuries. Injury no. 1 is an incised wound, which the doctor opined to be caused by a sharp-edged weapon. Injuries nos. 2 and 3 are contusions and injury no. 4 is a complaint of pain. The X-ray conducted at the District Hospital, Orai, revealed a fracture of a finger of the left hand. These findings are consistent with the complainant's allegation that he was assaulted with lathi, danda and axe, and they corroborate the statements of the complainant himself, who is an injured witness, as well as of PW-1 Vindeshwari and PW-2 Basanti, who are also stated to have been injured, and of the eye-witnesses PW-3 to PW-5. The evidence of an injured witness carries a presumption of presence at the place of occurrence and is ordinarily not lightly discarded. The learned Special Judge was therefore justified in finding the ocular version to be supported by the medical evidence at this stage. The submission regarding the timing of the medical examination and X-ray is, in the facts of the case, a matter relating to the weight of the evidence, which can be examined at trial and in no way renders the complaint prima facie unsustainable.
Learned counsel for the applicants was unable to point to any material contradiction or inherent improbability in the statements of the complainant and his witnesses recorded under Sections 200 and 202 Cr.P.C. All of them consistently stated about the time of occurrence (about 8:00 p.m. on 11.10.2013), the place (the complainant's house and courtyard), the names of the accused, the weapons used, the abusive caste-based remarks and the injuries to the complainant, his wife and daughter-in-law. Minor variations, if any, are normal and do not go to the root of the matter. Whether the witnesses are believable, and whether the contrary statements gathered during investigation, including the affidavits of persons produced by the accused side, are to be preferred, are questions of appreciation of evidence that cannot be decided at the stage of summoning or in an appeal against it.
It was forcefully urged on behalf of learned counsel for the applicants that the protest petition names only police officers and imputes misconduct only to them. This submission cannot be accepted, for the following reasons:
The F.I.R. in Case Crime No. 3680/2013 was registered on the direction of the learned Chief Judicial Magistrate against the very accused persons now before this Court and the allegations of the offence were thus made against them from the beginning.
The protest petition was filed against a final report in that very case. It narrates the incident of 11.10.2013, the role of the applicants, and prays for action against them as well. The complaint therefore stands on the allegation of the incident itself, and the averments about the police officers are in the nature of the grievance against the investigation.
The allegations against the police officers are, at their highest, of negligent, partisan or deficient investigation, namely that the injuries were not recorded, that statements of the injured were not properly taken, and that the spot was not inspected. Such averments, even if assumed to be true, concern the conduct of public servants and do not detract from the material against the applicants. They do not amount to a material illegality in the impugned order. The learned Special Judge, in fact, declined to summon the police officers, which shows application of mind and discrimination between the persons against whom prima facie material existed and those against whom it did not.
The court is not bound by the conclusions of the police report and may, on a protest petition, take cognizance and proceed on the complaint, taking his own view of the material. The error, if any, in the investigation by the police does not disentitle the complainant from pursuing the case against the actual accused persons.
It is evident from the record placed before this Court that, since the impugned order, charge has been framed against the applicants on 28.01.2025. The examination-in-chief of the prosecution's first witness, PW-1 Naresh Kumar, was recorded on 03.09.2025 during trial proceedings. The defence has been cross-examining him on several dates, namely 20.12.2025, 12.01.2026 and 10.02.2026, and his cross-examination is yet to be concluded. The applicants have thus submitted to the trial process and have actively participated in the testing of the prosecution evidence. The trial court is the proper forum for assessing whether the allegations are proved or not and the witnesses are being tested through cross-examination, and the contentions now urged, regarding contradictions, improbability and the falsity of the version, can be urged at the trial and in the final arguments, where the evidence can be assessed as a whole. The judgements of the Apex Court in Rajnish Kumar Biswakarma (supra) and State of Punjab (supra), relied upon by learned counsel for the applicants, are distinguisable on facts and, therefore, do not apply in their entirety to the present case. Learned counsel for O.P. No.2 rightly relied upon the judgement of the Apex Court in Ratilal Bhanji Mithani (supra). The relevant paras are extracted below:
“30.If after framing charges the Magistrate whimsically, without appraising the evidence and without permitting the prosecution to produce all its evidence, "discharges" the accused, such an acquittal, without trial, even if clothed as "discharge", will be illegal……..
34.It is thus manifest that in abruptly deleting the charges and "discharging" the accused, the Magistrate was acting neither in accordance with the observation or directions of Gokhale, J., nor in accordance with law.”
In the circumstances, the application calls for no detailed or meticulous examination of the evidence. This Court, in an application under Section 482 Cr.P.C. against an order of summoning, is not required to conduct a mini-trial, to weigh the evidence in a pan of scales, or to pre-empt the findings of the trial court by pronouncing on the credibility or merit of the material. Doing so would also prejudice the parties in the pending trial. Any observation in this order is confined to examining whether the impugned order is legally sustainable and shall not influence the trial court in any manner.
The incident relates to 11.10.2013. The accused were summoned on 28.02.2017, and about nine years have passed since then. The pendency of this petition, and any interim protection granted in it, must have contributed to the delay in the prosecution. The applicants, the complainant and the State have a right to a speedy trial. The offences alleged include those under the Act, which reflect a legislative concern for the protection of members of the Scheduled Castes, and the Act also contemplates that the trial of such cases be held expeditiously. It would be contrary to justice if a trial, which is already at the stage of evidence, were to be further delayed on grounds which can be urged before the trial court itself.
Thus, The legal position governing taking of cognizance and issuance of process stands well settled by the decisions of the Hon’ble Supreme Court in Pepsi Foods Ltd. (supra), Bhushan Kumar (supra) and Mehmood Ul Rehman (supra) as discuss herein above. The settled principle is that summoning an accused is a serious judicial act and criminal law cannot be set in motion mechanically or as a matter of course. Although a formal or elaborate speaking order is not invariably required at the stage of issuing process, the order and the material on record must sufficiently indicate that the Magistrate has applied judicial mind to the allegations, the statements recorded and the other relevant material, and has arrived at the requisite satisfaction that sufficient ground exists for proceeding against the person concerned. The Magistrate is required to determine whether the allegations, if considered with the material available at that stage, prima facie disclose an offence and make the proposed accused answerable before the criminal court; the question is not whether the evidence is sufficient to secure conviction. Accordingly, neither the absence of elaborate reasons, by itself, invalidates a summoning order, nor can the mere issuance of process be treated as conclusive proof of due application of mind. The legality of the order must be assessed in the light of the applicable statutory provisions and the facts and circumstances of the particular case.
This Court finds that the learned Special Court has not committed any illegality, material irregularity or jurisdictional error in taking cognizance and summoning the accused-applicants, namely, Raj Kumar, Ram Swaroop, Smt. Gayatri, Deepu and Dalpat Singh. The impugned order, when examined in its entirety and in the context of the material placed before the court, does not suffer from any such infirmity as would warrant interference by this Court in the exercise of its inherent jurisdiction. It is well settled that, at the stage of taking cognizance and issuing process, the court is required to ascertain whether sufficient ground exists for proceeding against the proposed accused, and not to undertake a meticulous evaluation of the evidence as would be necessary at the stage of trial. Accordingly, in the absence of any manifest illegality, perversity or abuse of the process of the court, the impugned order dated 28.02.2017 calls for no interference.
The impugned order dated 28.02.2017 passed by the learned Special Judge (SC/ST Act), Jalaun at Orai, in Complaint Case No. 11/2017, is affirmed.
The instant application is, accordingly, rejected.
The interim order, if any, granted during the pendency of this appeal stands vacated.
The learned trial court is directed to proceed with the trial expeditiously and to conclude the cross-examination of PW-1 and the remaining evidence as early as possible, preferably within one year by fixing short dates from the date of production of a certified copy of this order. The parties shall cooperate, and no unnecessary adjournment shall be granted.
Registrar (Compliance) is directed to communicate the instant order to the court concerned through District and Sessions Judge, Jalaun at Orai by e-mail/FAX within 48 hours.