Once triable offences are disclosed and commission of crime is
surfaced, question of malafide relegates into background which can be looked
into by the trial Judge at the stage of final decision. While summoning, that
aspect of the matter, in a case of present nature, is of no consequence.
Coming to the last argument which was harangued in respect of an
application under Section 156 (3) Cr.P.C. and submission of final report in the
earlier assault case, the same is untenable. Section 210 Cr.P.C. can be looked
in this respect which provides that even if investigating officer submits final
report, then victim is not remediless. He / she can still lodge a complaint and
get the malefactors prosecuted and punished. In such a view, last contention
too is rejected.
COURT NO.50
CRIMINAL REVISION NO.1932 OF 2011
Arun Kumar Singh and others....................................Revisionists.
Versus
State of U.P. and another.............................................Opposite Parties.
Two real sibling brothers Udai Narain Singh and Deep Narain Singh
revisionist nos.2 and 3 along with one Arun Kumar Singh revisionist no.1,
have approached this Court in its revisional jurisdiction under Section 397/401
Cr.P.C. challenging the order of their summoning dated 24.2.2011 passed by
Judicial Magistrate, court no.15, Basti, in Complaint Case No.534 of 2010,
Shiv Mangala Vs. Deep Narain and others for offences under Sections 323,
504, 506, 452, 379 I.P.C. Police Station Parashurampur, District Basti.
According to complainant Shiv Mangala wife of Bhogi, resident of
Ranipur, Basthanawa, Police Station Parashurampur, District Basti, as is
culled out from Annexure No.1 filed along with affidavit in support of this
revision, allegations are that complainant is a scheduled caste lady and
accused persons including the revisionists had animus against her. Earlier
accused persons had assaulted the complainant and her daughter in respect of
which first information report was got registered. On 21.7.2005 at 6:00 p.m.
because calf (Bacchiya) of the complainant untied the rope and went at the
doors of revisionist no. 3 Deep Narain Singh accused got enraged and started
abusing complainant filthily. They did not desist there but they chased the
complainant to assault her and when she entered into her house, assailants
followed her inside and assaulted the complainant Shiv Mangala and her
daughter with kicks and fists with utterances of filthy abuses and castiest
words. Intrudes also damaged utensils kept in the house, snatched away ear2
ring of the daughter Shanti and even torned of their clothes. This incident was
witnessed by Sandheen and Fazal and many other co-villagers.
An endeavour by the complainant to get first information report
registered, was refused by the police on the pretext that victim first get herself
medically examined only then her FIR shall be taken down. Since the police
failed to perform its statutory responsibility of registering FIR of cognizable
offence, complainant, left with no option, filed a complaint before the
Magistrate. It was on the basis of the said complaint, statement of victim and
her witness recorded under Sections 200 and 202 Cr.P.C. that ultimately
summoning order was passed by the Judicial Magistrate, court no.15, Basti,
which order is under challenge in this revision.
Learned counsel for the revisionists has raised various arguments in
support of this revision, which are recorded in seriatum as follows:-
Firstly, it was submitted that no offence under Section 452 I.P.C. is
made out as there is no allegation regarding preparation which is one of the
ingredients for making out that offence, therefore, summoning order of the
revisionists under Section 452 I.P.C. is unsanctified.
Secondly, it was submitted that impugned order of summoning has been
passed in a mechanical manner without any application of mind and if offence
under Section 394 I.P.C. was disclosed, Magistrate should have summoned the
accused under that offence which he has not done and, therefore, summoning
order has been passed without looking into allegations levelled against the
revisionists, which cannot been sustained.
Thirdly, it was submitted that entire prosecution is malafide as
complainant belongs to scheduled caste and she is litigating in civil court with
the revisionists and as pressure tactics, she had alleged false allegations only
to mount pressure on the revisionists and get them prosecuted.
It was next submitted that injury report does not support complainant's
version as there is no perceptible visible injury and medical examination was
also got done belatedly after two days. Injury report of the daughter does not
indicate any injury on her pinna and, therefore, allegations of snatching of her
ear ring is false. 3
It was lastly submitted that earlier an application under Section
156(3)Cr.P.C. was filed which was rejected and subsequent to that, a
complaint has been filed and summoning order has been passed, therefore,
entire exercise by the complainant is tainted with malafides. It is further
submitted that in the earlier first information report, final report was submitted
by the police and, therefore, complainant only wants to harass the accused
persons.
On the basis of aforesaid contentions, it is submitted that impugned
summoning order be quashed.
Learned A.G.A., refuted all the submissions of the revisionists' counsel.
I have perused the record and considered the submissions raised by the
revisionists' counsel.
Dealing with submissions in seriatum, first contention that no offence
under Section 452 I.P.C. is made out because there is absence of any allegation
regarding preparation, the said argument per se is unacceptable. Preparation
does not mean preparation carried on in preceding days. Preparation can be
made instantaneously. Assault is one of the ingredients of Section 452 I.P.C.
Definition of assault as is mentioned in Section 351 I.P.C. indicates gestures as
well. If somebody makes gesture and trespass into house of the victim
habouring an idea to assault, it is preparation within the meaning of section
452 I.P.C. sufficient to make out that offence. Preparation does not mean
physical preparation, preparation means having an idea and determination to
make an assault even by gesture. Preparation has not been defined under
Indian Penal Code, therefore, it has to be given a logical meaning in
consonance with common parlance. Anybody who has an idea to assault, if he
acts on with that intent, it is preparation as is contemplated under Section 452
I.P.C.
In the present case, after calf had untied it's rope and went at the door of
Deep Narain Singh revisionist no.3, accused persons started the incident not
only by vituperating the complainant but also they used castiest words
andwhen the complainant entered into her house, they also chased her
trespassed in her house and assaulted her hurling filthy caste words. Above4
facts leads to conclude that it was entering into house after making preparation
to assault the victim. First submission in respect of absence of ingredient of
Section 452 I.P.C., therefore, is repelled.
Coming to the second limb of argument regarding that no offence under
Section 379, 394 I.P.C. is disclosed and instead offence under Section 392
I.P.C. is made out, the said contention is against factual matrix. There are
specific allegations that Shanti was assaulted with kicks and fits. She was
abused filthily and accused persons had snatched away ear ring which was
worn by Shanti. Ear ring was her personal property. If somebody snatched it
away without consent of victim Shanti, it is theft and consequently
summoning of the accused under Section 379 I.P.C., is not unjustified.
Turning towards argument that offence under Section 392 I.P.C. is
disclosed, therefore, order of summoning is without any application of mind,
to say the least said contention is wholly illegal. For making out an offence
under section 394 I.P.C., sine quo non ingredient is that assault should be
made with an intention to commit theft which is not the allegation in the
instant case. Here, after making an assault without any intention to commit
theft a bizarre act was done by one of the accused by snatching ear ring,
therefore, in absence of predominant motive to commit theft, no offence under
Section 394 I.P.C. is disclosed against the accused. In this respect, contention
of the revisionists' counsel is not acceptable and is repelled.
Coming to third limb of argument that impugned order has been passed
in a mechanical manner without application of mind, the said argument is not
borne out from the record. While passing the order of summoning, learned
Magistrate has looked into entire allegations and has mentioned it in the
impugned summoning order. Trial Court has scanned statements under
Sections 200 and 202 Cr.P.C. of PW-1 Subhash Chandra Vishwakarma, PW-2
Shanti Devi and after looking into entire material placed before it that it has
summoned the accused persons for the aforesaid charges. Impugned order,
therefore, cannot be castigated for the reason that it has been passed without
any application of mind. Moreover it has not been argued that facts mentioned
in the impugned order are contrary to the record and this fact by itself5
indicates that learned Magistrate has applied its mind on the merits of the
allegations and has passed summoning order after due care and caution. In
view of above, third contention is also repelled.
Coming to the fourth contention regarding malafides prosecution, it is
noted that it is a case where the accused persons entered into house of the
complainant and assaulted her and her daughter. They also torned off clothes
of the complainant and her daughter. This is an offence under Section 354
I.P.C. as well. In this respect, case of the complainant is squarely covered by
the decision of the Apex Court in the case of Roopan Deval Bajaj Vs. State
of Punjab. It is noted with concern that learned Magistrate has not
summoned the revisionists for that charge when he should have done so.
Additionally, once triable offences are disclosed and commission of crime is
surfaced, question of malafide relegates into background which can be looked
into by the trial Judge at the stage of final decision. While summoning, that
aspect of the matter, in a case of present nature, is of no consequence.
Turning towards various medical reports, raised contention is not
acceptable. It is the case of the complainant herself that when she had gone to
get herself medically examined, doctor in connivance with the accused
persons manipulated injury report. Injury report which was given to her was
not correct injury report. There are specific averments made in the complaint
and victim must be afforded opportunity to prove her allegation.
Coming to the last argument which was harangued in respect of an
application under Section 156 (3) Cr.P.C. and submission of final report in the
earlier assault case, the same is untenable. Section 210 Cr.P.C. can be looked
in this respect which provides that even if investigating officer submits final
report, then victim is not remediless. He / she can still lodge a complaint and
get the malefactors prosecuted and punished. In such a view, last contention
too is rejected.
There is no merit in this revision which stands dismissed.
After the aforesaid order was dictated in open Court, learned counsel for
the revisionists prayed that some direction for expeditious disposal of bail be
issued. 6
Looking to the facts and circumstances of the present case, it is directed
that if the revisionists surrender within a period of three weeks from today and
move an application for their bail, said prayer be considered by the courts
below as expeditiously as possible if possible on the same day in the aforesaid
case for the aforesaid offences.
Dt. 5.5.2011
rkg
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