# Kaushar Khan & Ors v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 2075
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Application U/S 482 No. 5228 of 2023
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaushar-khan-ors-v-state-of-u-p-anr-52045
- **Pages:** 11

## Headnote

(Prevention of Atrocities) Act, 1989Section 3(1) (S)-Complaint
filed-learned
Magistrate without considering the material
2076 INDIAN LAW REPORTS ALLAHABAD SERIES
available and without considering averment in
F.I.R.-as per own case of the opposite partyalleged incidence took place in a private
orchard- no public was present-no public viewingredients of sec. 3(1) (S) of the SC/ST Act not
attracted.

Application allowed. (E-9)

List of Cases cited:

## Text

5 All. Kaushar Khan & Ors. Vs. State of U.P. & Anr.
2075
no.204/2023 dated 24.12.2023 arising out
of Case Crime No.283/2023 under Section
294
I.P.C.,
Police
Station-Achalganj,
District-Unnao and also the entire as well
as consequential proceedings of Criminal
Case No.141/2024 (State of U.P. vs. Sachin
and Ors.) arising out of arising out of Case
Crime No.283/2023 under Section 294
I.P.C., Police Station-Achalganj, DistrictUnnao pending in the court of learned Civil
Judge, Senior Division (F.T.C.) Unnao and
are liable to be quashed as the investigation
of the instant case has been conducted in a
tainted, botched- up and hasty manner by
the police merely in order to show up the
good work and has proceeded to make out
a false, fabricated and concocted case and
has falsely implicated the applicant in the
present case wherein, the police has
completely
ignored
the
mandatory
provisions of criminal law. The haste in
finalizing the investigation in the instant
case is evident from the fact that within a
week after registration of the FIR, the
impugned charge-sheet was filed wherein
only the statement of members of police
party on one day and on another day site
plan was prepared and statement of the
informant was recorded and neither any
independent witness was examined nor any
females were examined, who were being
annoyed by the alleged obscene comments
of the applicant.

31. Accordingly, the impugned
summoning order dated 30.01.2024 passed
by learned Civil Judge, Senior Division
(F.T.C.)
Unnao
in
Criminal
Case
No.141/2024 (State of U.P. vs. Sachin and
Ors.),
arising
out
of
Case
Crime
No.283/2023 under Section 294 I.P.C.,
Police Station-Achalganj, District-Unnao
and
the
impugned
charge
sheet
no.204/2023 dated 24.12.2023 arising out
of Case Crime No.283/2023 under Section
294
I.P.C.,
Police
Station-Achalganj,
District-Unnao and also the entire as well
as consequential proceedings of Criminal
Case No.141/2024 (State of U.P. vs. Sachin
and Ors.) arising out of arising out of Case
Crime No.283/2023 under Section 294
I.P.C., Police Station-Achalganj, DistrictUnnao pending in the court of learned Civil
Judge, Senior Division (F.T.C.) Unnao are
hereby quashed.

32. For the reasons discussed
above, the instant application under Section
482 Cr.P.C. filed by the applicant is
allowed in respect of the instant applicant,
namely-Monu Kumar.

33. Office is directed to transmit a
copy of this order to the trial court
concerned for its necessary compliance.

34. No order as to cost(s).
---------
(2024) 5 ILRA 2075
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.05.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 5228 of 2023

Kaushar Khan & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Gibran Akhtar Khan

Counsel for the Opposite Parties:
G.A.

Schedule Caste and Schedule Tribes
(Prevention of Atrocities) Act, 1989Section 3(1) (S)-Complaint
filed-learned
Magistrate without considering the material
2076 INDIAN LAW REPORTS ALLAHABAD SERIES
available and without considering averment in
F.I.R.-as per own case of the opposite partyalleged incidence took place in a private
orchard- no public was present-no public viewingredients of sec. 3(1) (S) of the SC/ST Act not
attracted.

Application allowed. (E-9)

List of Cases cited:

1. Hitesh Verma Vs St. of Uttarakhand ,(2020)
10 SCC 710.

2. Ramesh Chandra Vaishya Vs St. of U.P. & anr.,
SCC OnLine SC 668.

3. Fakhruddin Ahmad Vs St. of Uttranchal & anr.
(2008) 17 SCC 157.

4. Ankit Vs St. of U.P. & anr. reported in JIC 2010
(1) Page 432.

5. St. of Haryana Vs Bhajanlal reported in 1992
SCC (Crl.) 426.

6. Hitesh Verma Vs St. of Uttarakhand, (2020)
10 SCC 710

7. Ramesh Chandra Vaishya Vs St. of U.P. & anr.;
(2023) SCC OnLine SC 668

8. Fakhruddin Ahmad Vs St. of Uttranchal & anr.
(2008) 17 SCC 157

9. Ankit Vs St. of U.P. & anr. reported in JIC 2010
(1) page 432

10. R.P. Kapoor Vs St. of Pun., AIR 1960 S.C. 866,

11. St. of Haryana Vs Bhajanlal, 1992 SCC
(Crl.)426,

12. St. of Bihar Vs P.P. Sharma, 1992 SCC
(Crl.)192,

13. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cri.)
283

14. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Maharashtra, AIR 2021 SC 1918.
15. S.W. Palankattkar & ors. Vs St. of Bihar, 2002
(44) ACC 168

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Mr. Gibran Akhtar Khan,
learned Counsel for the applicants, Ms.
Ankita Tripathi, learned A.G.A. for the
State-opposite party No.1 and perused the
material placed on record.

2. The present application under
Section 482 Cr.P.C. has been filed on behalf
of the applicants seeking quashing of the
entire proceeding of Complaint Case
No.281/2022; Smt. Pooja vs. Kaushar and
Others, under Sections 323 and 504 I.P.C.
and Section 3(1) (S) of Schedule Caste and
Schedule Tribes (Prevention of Atrocities)
Act, 1989, Police Station-Bilgram, DistrictHardoi as well as summoning order dated
09.04.2024 passed in the aforesaid case.

3. Learned Counsel for the applicants
submits that the applicants are innocent
persons and have been falsely implicated in
the present case due to village rivalry. He
further submits that the brief facts of case
are that on 05.11.2021 when applicant no.
2(Azam) reached home on his Motorcycle
at about 1.00 p.m, he found that the
Complainant's Husband Bholanath and
Complainant's Brother Sunil were sitting at
his doorstep and drinking alcohol, on which
the applicant no.2 (Azam) requested them
not to drink alcohol at his doorstep,
however
the
Complainant's
husband
namely Bholanath, being in the state of
inebriation, started hurling abusive words
to the applicant no.2 Azam and applicant
no.2, Azam requested the Complainant's
husband, not to utter abusive words for his
family, but he didn't stop, so applicant no.2
(Azam) called the police at 1.26 pm by
making a phone call at Dial 100 Emergency
5 All. Kaushar Khan & Ors. Vs. State of U.P. & Anr.
2077
Service, and on seeing the Police Response
Vehicle coming at around 2:00pm, the
complainant's husband ran away from his
home. Applicants thought, that the matter
has come to an end. He further submits that
the applicants are the next door neighbors
of the Complainant, and in the small narrow
lane there are only two houses, one of
complainant, and the other one is of the
applicants.

4. Learned Counsel for the applicants
further submits that on 11.01.2022, in an
after thought manner, a frivolous complaint
was filed by the Complainant (opposite
party
no.2),
falsely
implicating
the
applicants for extorting money and as per
the allegations made in the complaint, all
the applicants who are four in number,
using abusive words started beating the
complainant (opposite party no.2), and also
the complainant's husband with hands and
feet, and the complainant and her husband
were saved by the intervention of
complainant's brother and some village
people. He further submits that in this entire
incident surprisingly no injury was inflicted
upon the body of the complainant and the
complainant's husband, and admittedly no
medical examination was done. He further
submits that it is unbelievable that four
persons
physically
assaulted
the
complainant, who is a lady, and no injury
was sustained by her. Moreover, the
complainant's husband was also physically
assaulted by all the applicants as per the
allegations made in the complaint, and no
injury was inflicted upon him as well.

5. Learned Counsel for the applicants
further submits that the statement of the
complainant was recorded under section
200 Cr.P.C., but the same do not
corroborate the version enumerated in the
Complaint. There is no mention in the
statement recorded under Section 200
Cr.P.C., that the applicants entered her
house and gave blows with hands and
kicks. Neither the statement recorded under
Section 200 Cr.P.C. finds mention of one
Rajpal and village people, as has been
alleged in the complaint, who came to the
rescue of complainant and her husband.
Thus there is major contradiction in the
statement recorded under Section 200
Cr.P.C.
and
the
complaint
dated
11.01.2022. He further submits that the
statements recorded by the witnesses under
section 202 Cr.P.C. also do not inspire any
confidence that the alleged incident, did
take place.

6. Learned Counsel for the applicants
further submits that statement of the
complainant's brother recorded under
Section 202 Cr.P.C., wherein, there is also
no mention of Hand Cart(Thiliya), and
neither Rajpal nor Village people have been
named, who came to the rescue of
Complainant and her Husband as has been
alleged in the Complaint.

7. Learned Counsel for the applicants
further submits that at this juncture that the
aforesaid Complaint has been filed in an
after thought manner after a period of two
months, and there is no independent
witness in the Complaint, to corroborate the
alleged incident, which falsify the contents
of the complaint and also raise a cloud of
doubt over the allegations made therein.

8. Learned Counsel for the applicants
further submits that the applicants have
never had any dispute with the complainant
and his family members before this
incident. He further submits that the
allegations leveled in the complaint are
false and fabricated. No such incident ever
took place as alleged by the opposite party
2078 INDIAN LAW REPORTS ALLAHABAD SERIES
No.2. He further submits that ingredients of
Section 3(1) (S) SC/ST Act are not attracted
in the present case as the house of the
opposite party No.2 was a private place and
there was no public view, the scuffle took
place in a private house, thus, the there was
no public view nor it was a public place. He
further submits that on bare perusal of the
complaint it is clear that there is no mention
of any public view, thus, the very basis of
the provisions of SC/ST Act are missing in
the present case.

9. Learned counsel for the applicant
further submits that the order dated
09.04.2024 passed by learned trial court in
Complaint Case No.281/2022; Smt. Pooja
vs. Kaushar and Others, under Sections 323
and 504 I.P.C. and Section 3(1) (S) of
Schedule Caste and Schedule Tribes
(Prevention of Atrocities) Act, 1989, Police
Station-Bilgram, District-Hardoi, by which
cognizance was taken and the applicants
were summoned, is also non speaking as
the Magistrate has not considered any
material available before him while
summoning the applicants to face the trial.
As such, the impugned order dated
09.04.2024 on the face of record appears to
be unjustified and is passed without
application of judicial mind, therefore, the
same is liable to be set aside and further
proceedings in pursuance to the above case
may also be quashed by this Court and the
present application be allowed.

10. In support of his arguments,
learned Counsel for the applicants has
placed reliance on following judgments of
Hon'ble Supreme Court of India:-

"(i) Hitesh Verma vs. State of
Uttarakhand reported in (2020) 10 SCC
710.

(ii) Ramesh Chandra Vaishya vs.
State of U.P. and Another reported in SCC
OnLine SC 668.

(iii) Fakhruddin Ahmad vs.
State of Uttranchal and Another repored
in (2008) 17 SCC 157.

(iv) Ankit vs. State of U.P. and
Another reported in JIC 2010 (1) Page
432.
(v) State of Haryana vs. Bhajanlal
reported in 1992 SCC (Crl.) 426."

11. Ms. Ankita Tripathi, learned
A.G.A. for the State-opposite party No.1
apposed the contentions made by learned
Counsel for the applicants and submits that
prima facie offence is made out against the
applicants and the trial court has rightly
passed impugned summoning order after
considering the material placed on record,
thus, the applicants are not entitled for any
relief by this Court and the present appeal
may be dismissed.

12. After considering the arguments
advanced by learned counsel for the parties
and perusal of record in light of the
submissions made at the Bar and after
taking an overall view of all the facts and
circumstances of this case, the nature of
evidence and the contents of the
complaint, statements of witnesses as
well
as
summoning
order
dated
09.04.2024, this court is of the view that
the SC/ST Act, 1989 is meant to prevent
the commission of offences of atrocities
against the members of the Schedule
Castes and the Schedule Tribes, to
provide for Special Courts and Exclusive
Special Courts for the trial of such
offences
and
for
the
relief
and
rehabilitation of the victims of such
offences and for matters connected
therewith or incidental thereto.
5 All. Kaushar Khan & Ors. Vs. State of U.P. & Anr.
2079

13. It is further observed that the
SC/ST Act, 1989 was enacted to improve
the social economic conditions of the
vulnerable sections of the society as they
have been subjected to various offences
such as indignities, humiliations and
harassment. They have been deprived of
life and property as well. The object of the
Act, 1989 is thus to punish the violators
who inflict indignities, humiliations and
harassment and commit the offence as
defined under Section 3 of the SC/ST Act,
1989. The SC/ST Act, 1989 thus intended
to punish the acts of the upper caste against
the vulnerable section of the society for the
reason that they belong to a particular
community. Section 3(1)(S) of the SC/ST
Act, 1989 or 3(1)(S) of the SC/ST Act, 1989
would read as under:-

"Section 3(1)(s) of the Schedule
Caste and Schedule Tribes (Prevention of
Atrocities) Act, 1989- abuses any member
of a Scheduled Caste or a Schedule Tribe
by caste name in any place within the public
view"

 Thus, the basic ingredient of the
offence under Section 3(1) (S) can be
clarified as abuse of any member of
Schedule Caste or a Schedule Tribe by caste
name in any place within the public view.

14. It is further observed that an
offence under the SC/ST Act, 1989 would
be made out when a member of the
vulnerable section of the society is
subjected to indignities, humiliations and
harassment in any place within the public
view.

15. In the present case, this Court
finds that the applicants have not abused the
opposite party No.2 by caste name in any
place within the public view, even though,
the opposite party No.2 has not stated
anything about abuses hurled to her by the
applicants in a place within a public view,
thus, the allegations as leveled in the
compliant does not constitute offence under
Section 3(1) (S) of the SC/ST Act, 1989.

16. It is further observed by this Court
that before an accused is subjected to trial
for commission of offence under Section
3(1) (S) of the SC/ST Act, 1989 the
utterances made by him in any "place
within a public view" is mandatory and
from the bare perusal of the F.I.R., the
utterances, if any, as mentioned in Section
3(1) (S) are not fulfilled. The Investigating
agencies while investigating the matter are
duty bound to consider the factual aspects
of the matter and also to consider the
statement of witnesses, complainant as well
as the applicants so as to ascertain whether
the chargesheet makes out a case under the
SC/ST Act, 1989 having been committed
for forming a proper opinion in the
conspectus of the situation before it, prior
to taking cognizance of the offence by
learned Magistrate. In the present case from
the factual aspects and contents of the F.I.R.
discussed above, no offence is made out
under Section 3(1) (S) of the SC/ST Act,
1989. Though, the learned Magistrate has
not applied its judicial mind while taking
cognizance in the matter and while
summoning the applicants by impugned
order to face trial, which is very serious
matter.

17. In view of the aforesaid
discussion, this Court deems it proper to
discuss some case laws.

18. Hon'ble Supreme Court in the
case of Hitesh Verma Vs. State of
Uttarakhand, (2020) 10 SCC 710 has
been pleased to observe in para 13, 14 and
18 as under :-
2080 INDIAN LAW REPORTS ALLAHABAD SERIES

"13. All insults or intimidations to
a person will not be an offence under the
Act unless such insult or intimidation is on
account of victim belonging to Scheduled
Caste or Scheduled Tribe. The object of the
Act is to improve the socio-economic
conditions of the Scheduled Castes and the
Scheduled Tribes as they are denied
number of civil rights. Thus, an offence
under the Act would be made out when a
member of the vulnerable section of the
Society
is
subjected
to
indignities,
humiliations
and
harassment.
The
assertion of title over the land by either of
the parties is not due to either the
indignities, humiliations or harassment.
Every citizen has a right to avail their
remedies
in
accordance
with
law.
Therefore, if the appellant or his family
members have invoked jurisdiction of the
civil court, or that respondent No.2 has
invoked the jurisdiction of the civil court,
then the parties are availing their remedies
in
accordance
with
the
procedure
established by law. Such action is not for
the reason that respondent No.2 is member
of Scheduled Caste.

14. Another key ingredient of the
provision is insult or intimidation in "any
place within public view". What is to be
regarded as "place in public view" had
come up for consideration before this Court
in the judgment reported as Swaran Singh
v. State [Swaran Singh v. State, (2008) 8
SCC 435 : (2008) 3 SCC (Cri) 527]. The
Court had drawn distinction between the
expression "public place" and "in any place
within public view". It was held that if an
offence is committed outside the building
e.g. in a lawn outside a house, and the lawn
can be seen by someone from the road or
lane outside the boundary wall, then the
lawn would certainly be a place within the
public view. On the contrary, if the remark
is made inside a building, but some
members of the public are there (not merely
relatives or friends) then it would not be an
offence since it is not in the public view
(sic) . The Court held as under :

"28. It has been alleged in the
FIR that Vinod Nagar, the first informant,
was insulted by Appellants 2 and 3 (by
calling him a "chamar") when he stood
near the car which was parked at the gate
of the premises. In our opinion, this was
certainly a place within public view, since
the gate of a house is certainly a place
within public view. It could have been a
different matter had the alleged offence
been committed inside a building, and also
was not in the public view. However, if the
offence is committed outside the building
e.g. in a lawn outside a house, and the lawn
can be seen by someone from the road or
lane outside the boundary wall, the lawn
would certainly be a place within the public
view. Also, even if the remark is made inside
a building, but some members of the public
are there (not merely relatives or friends)
then also it would be an offence since it is
in the public view. We must, therefore, not
confuse the expression "place within public
view" with the expression "public place". A
place can be a private place but yet within
the public view. On the other hand, a public
place would ordinarily mean a place which
is owned or leased by the Government or
the municipality (or other local body) or
gaon sabha or an instrumentality of the
State, and not by private persons or private
bodies."

18. Therefore, offence under the
Act is not established merely on the fact that
the informant is a member of Scheduled
Caste unless there is an intention to
humiliate a member of Scheduled Caste or
Scheduled Tribe for the reason that the
victim belongs to such caste. In the present
case, the parties are litigating over
possession of the land. The allegation of
5 All. Kaushar Khan & Ors. Vs. State of U.P. & Anr.
2081
hurling of abuses is against a person who
claims title over the property. If such person
happens to be a Scheduled Caste, the
offence under Section 3(1)(r) of the Act is
not made out."

19. Further, the Hon'ble Apex Court in
the case of Ramesh Chandra Vaishya Vs.
State of U.P. and Another; (2023) SCC
OnLine SC 668 has been pleased to
observe in paragraph 17, 18 and 21 as
under:-

"17. The first question that calls for an
answer is whether it was at a place within
public view that the appellant hurled caste
related abuses at the complainant with an
intent to insult or intimidate with an intent
to humiliate him. From the charge-sheet
dated 21st January, 2016 filed by the I.O.,
it appears that the prosecution would seek
to rely on the evidence of three witnesses to
drive home the charge against the appellant
of committing offences under sections 323
and 504, IPC and 3(1)(x), SC/ST Act. These
three witnesses are none other than the
complainant, his wife and their son. Neither
the first F.I.R. nor the charge-sheet refers to
the presence of a fifth individual (a member
of the public) at the place of occurrence
(apart from the appellant, the complainant,
his wife and their son). Since the
utterances, if any, made by the appellant
were not "in any place within public view",
the basic ingredient for attracting section
3(1)(x)
of
the
SC/ST
Act
was
missing/absent. We, therefore, hold that at
the relevant point of time of the incident (of
hurling of caste related abuse at the
complainant by the appellant), no member
of the public was present.

18.
That
apart,
assuming
arguendo that the appellant had hurled
caste related abuses at the complainant
with a view to insult or humiliate him, the
same does not advance the case of the
complainant any further to bring it within
the ambit of section 3(1)(x) of the SC/ST
Act. We have noted from the first F.I.R. as
well as the charge- sheet that the same
makes no reference to the utterances of the
appellant during the course of verbal
altercation or to the caste to which the
complainant belonged, except for the
allegation/observation that caste-related
abuses were hurled. The legislative intent
seems to be clear that every insult or
intimidation for humiliation to a person
would not amount to an offence under
section 3(1)(x) of the SC/ST Act unless, of
course, such insult or intimidation is
targeted at the victim because of he being a
member of a particular Scheduled Caste or
Tribe. If one calls another an idiot
(bewaqoof) or a fool (murkh) or a thief
(chor) in any place within public view, this
would obviously constitute an act intended
to insult or humiliate by user of abusive or
offensive language. Even if the same be
directed generally to a person, who
happens to be a Scheduled Caste or Tribe,
per se, it may not be sufficient to attract
section 3(1)(x) unless such words are laced
with casteist remarks. Since section 18 of
the SC/ST Act bars invocation of the court's
jurisdiction under section 438, Cr.PC and
having regard to the overriding effect of the
SC/ST Act over other laws, it is desirable
that before an accused is subjected to a trial
for alleged commission of offence under
section 3(1)(x), the utterances made by him
in any place within public view are
outlined, if not in the F.I.R. (which is not
required to be an encyclopedia of all facts
and events), but at least in the charge-sheet
(which is prepared based either on
statements of witnesses recorded in course
of investigation or otherwise) so as to
enable the court to ascertain whether the
charge sheet makes out a case of an offence
2082 INDIAN LAW REPORTS ALLAHABAD SERIES
under the SC/ST Act having been committed
for forming a proper opinion in the
conspectus of the situation before it, prior
to taking cognizance of the offence. Even
for the limited test that has to be applied in
a case of the present nature, the chargesheet dated 21 st January, 2016 does not
make out any case of an offence having
been committed by the appellant under
section 3(1)(x) warranting him to stand a
trial.

21. Section 323, IPC prescribes
punishment for voluntarily causing hurt.
Hurt is defined in section 319, IPC as
causing bodily pain, disease or infirmity to
any person. The allegation in the first F.I.R.
is that the appellant had beaten up the
complainant for which he sustained
multiple injuries. Although the complainant
alleged that such incident was witnessed by
many persons and that he sustained injuries
on his hand, the charge-sheet does neither
refer to any eye-witness other than the
complainant's wife and son nor to any
medical report. The nature of hurt suffered
by the complainant in the process is neither
reflected from the first F.I.R. nor the
charge-sheet.
On
the
contrary,
the
appellant had the injuries suffered by him
treated immediately after the incident. In
the counter-affidavit filed by the first
respondent
(State)
in
the
present
proceeding, there is no material worthy of
consideration in this behalf except a bald
statement that the complainant sustained
multiple injuries "in his hand and other
body parts". If indeed the complainant's
version were to be believed, the I.O. ought
to have asked for a medical report to
support
the
same.
Completion
of
investigation within a day in a given case
could be appreciated but in the present case
it has resulted in more disservice than
service to the cause of justice. The situation
becomes all the more glaring when in
course of this proceeding the parties
including the first respondent are unable to
apprise us the outcome of the second F.I.R.
In any event, we do not find any ring of
truth in the prosecution case to allow the
proceedings to continue vis--vis section
323, IPC."

20. Further, the Hon'ble Supreme
Court in the case of Fakhruddin Ahmad Vs
State of Uttranchal and another reported
in (2008) 17 SCC 157, discussed the
expression "taking cognizance of an
offence"
by
a
Magistrate
within
contemplation of section 190 of the Cr.P.C
and also discussed what must have been
taken notice by the Magistrate while taking
cognizance. Paras 11, 12, 13,14 and15
being relevant are abstracted below:-

"11.The next incidental question
is as to what is meant by expression `taking
cognizance of an offence' by a Magistrate
within the contemplation of Section 190 of
the Code?

12.The expression `cognizance' is
not defined in the Code but is a word of
indefinite import. As observed by this Court
in Ajit Kumar Palit Vs. State of West
Bengal2, the word `cognizance' has no
esoteric or mystic significance in criminal
law or procedure. It merely means--become
aware 2 [1963] Supp. 1 S.C.R. 953 9 of and
when used with reference to a Court or
Judge, to take notice of judicially.
Approving the observations of the Calcutta
High Court in Emperor Vs. Sourindra
Mohan Chuckerbutty3, the Court said that
`taking cognizance does not involve any
formal action; or indeed action of any kind,
but occurs as soon as a Magistrate, as such,
applies
his
mind
to
the
suspected
commission of an offence.'

13. Recently, this Court in S.K.
Sinha, Chief Enforcement Officer Vs.
5 All. Kaushar Khan & Ors. Vs. State of U.P. & Anr.
2083
Videocon International Ltd. & Ors.4,
speaking through C.K. Thakker, J., while
considering the ambit and scope of the
phrase `taking cognizance' under Section
190 of the Code, has highlighted some of
the observations of the Calcutta High Court
in Superintendent & Remembrancer of
Legal Affairs, West Bengal Vs. Abani
Kumar Banerjee5, which were approved by
this Court in R. R. Chari Vs. State of U.P.6.
The observations are:

3 (1910) I.L.R. 37 Calcutta 412 4
(2008) 2 SCC 492 5 A.I.R. (37) 1950
Calcutta 437 6 A.I.R. (38) 1951 SC 207 1 0
"7. ... What is `taking cognizance' has not
been defined in the Criminal Procedure
Code, and I have no desire now to attempt
to define it. It seems to me clear, however,
that before it can be said that any
Magistrate has taken cognizance of any
offence under Section 190(1)(a) CrPC, he
must not only have applied his mind to the
contents of the petition, but he must have
done so for the purpose of proceeding in a
particular way as indicated in the
subsequent provisions of this Chapter,
proceeding
under
Section
200,
and
thereafter sending it for enquiry and report
under Section 202. When the Magistrate
applies his mind not for the purpose of
proceeding under the subsequent sections
of this Chapter, but for taking action of
some
other
kind,
e.g.,
ordering
investigation under Section 156 (3), or
issuing a search warrant for the purpose of
the investigation, he cannot be said to have
taken cognizance of the offence."

14. From the afore-noted judicial
pronouncements, it is clear that being an
expression of indefinite import, it is neither
practicable nor desirable to precisely
define as to what is meant by `taking
cognizance'. Whether the Magistrate has or
has not taken cognizance of the offence will
depend upon the circumstances of the
particular case, including the mode in
which the case is sought to be instituted and
the nature of the preliminary action.

15. Nevertheless, it is well settled
that before a Magistrate can be said to have
taken cognizance of an offence, it is
imperative that he must have taken notice
of the accusations and applied his mind to
the allegations made in the complaint or in
the police report or the information
received from a source other than a police
report, as the case may be, and the material
filed therewith. It needs little emphasis that
it is only when the Magistrate applies his
mind and is satisfied that the allegations, if
proved, would constitute an offence and
decides to initiate proceedings against the
alleged offender, that it can be positively
stated that he has taken cognizance of the
offence."

21. This Court in the matter of Ankit
Vs State of U.P. and another reported in
JIC 2010 (1) page 432 has held that-

"Although as held by this Court in
the case of Megh Nath Guptas & Anr V
State of U.P. And Anr, 2008 (62) ACC 826,
in which reference has been made to the
cases of Deputy Chief Controller Import
and Export Vs Roshan Lal Agarwal, 2003
(4^) ACC 686 (SC), UP Pollution Control
Board Vs Mohan Meakins, 2000 (2) JIC
159 (SC): AIR 2000 SC 1456 and Kanti
Bhadra Vs State of West Bengal, 2000 (1)
JIC 751 (SC): 2000 (40) ACC 441 (SC), the
Magistrate is not required to pass detailed
reasoned order at the time of taking
cognizance on the charge sheet, but it does
not mean that order of taking cognizance
can be passed by filling up the blanks on
printed proforma. At the time of passing
any judicial order including the order
taking cognizance on the charge sheet, the
Court is required to apply judicial mind and
2084 INDIAN LAW REPORTS ALLAHABAD SERIES
even the order of taking cognizance cannot
be
passed
in
mechanical
manner.
Therefore, the impugned order is liable to
be quashed and the matter has to be sent
back to the Court below for passing fresh
order on the charge sheet after applying
judicial mind."

 Thus, in the present case learned
Magistrate without considering the material
available before him and even without
considering the averments made in the
F.I.R. in which as per the own case of the
opposite party No.2 the alleged incident
took place in a private Orchard and at that
time no public was present nor there was
any public view. Learned Magistrate while
taking cognizance did not consider the
statements of the applicants which was
recorded by the Investigating Officer
before filing the chargesheet. Thus, the
ingredients of Section 3(1) (S) of the SC/ST
Act, 1989 is not attracted in the present case
and as such, no offence under the aforesaid
section is made out against the applicants.

22. Thus, after perusing the record in
the light of the submissions made at the bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature of evidence and as per the contents
of the complaint and considering the
various case laws referred above, the
incident does not appear to happen in a
public place or in a public view, thus,
Section 3(1) (S) of the SC/ST Act, 1989 is
not attracted against the applicants as the
incident did not occur in any "place within
a public view", as such, considering the law
laid down by the Hon'ble Apex Court in the
case of Hitesh Verma (Supra), Ramesh
Chandra Vaishya (Supra), Fakhruddin
Ahmad (Supra) as well as law laid down by
co-ordinate Bench of this Court in the case
of Ankit (Supra) this Court is of the view
that the learned trial court has failed to
appreciate the material available on record.
The summoning order dated 09.04.2024
passed by the trial court alongwith the
entire criminal proceedings of the aforesaid
case are liable to be quashed.

23. Further the Apex Court has also
laid down the guidelines where the criminal
proceedings could be interfered and
quashed in exercise of its power by the
High Court in the following cases:- (i) R.P.
Kapoor Vs. State of Punjab, AIR 1960 S.C.
866, (ii) State of Haryana Vs. Bhajanlal,
1992 SCC (Crl.)426, (iii) State of Bihar
Vs. P.P. Sharma, 1992 SCC (Crl.)192, (iv)
Zandu Pharmaceutical Works Ltd. Vs.
Mohd. Saraful Haq and another, (Para10) 2005 SCC (Cri.) 283 and (v)
Neeharika Infrastructure Pvt. Ltd. Vs.
State of Maharashtra, AIR 2021 SC 1918.

24. From the aforesaid decisions the
Apex Court has settled the legal position for
quashing of the proceedings at the initial
stage. The test to be applied by the court is
to whether uncontroverted allegation as
made prima facie establishes the offence
and the chances of ultimate conviction is
bleak and no useful purpose is likely to be
served by allowing criminal proceedings to
be continued.

25. In S.W. Palankattkar & others Vs.
State of Bihar, 2002 (44) ACC 168, it has
been held by the Hon'ble Apex Court that
quashing of the criminal proceedings is an
exception than a rule. The inherent powers
of the High Court itself envisages three
circumstances under which the inherent
jurisdiction may be exercised:-(i) to give
effect an order under the Code, (ii) to
prevent abuse of the process of the court ;
(iii) to otherwise secure the ends of justice.
The power of High Court is very wide but
should be exercised very cautiously to do
5 All. Triloki Nath Vs. J.D.C. & Ors.
2085
real and substantial justice for which the
court alone exists.

26. Accordingly in view of the above
discussions and observations made, this
application
is
allowed,
the
entire
proceeding
of
Complaint
Case
No.281/2022; Smt. Pooja vs. Kaushar and
Others, under Sections 323 and 504 I.P.C.
and Section 3(1) (S) of Schedule Caste and
Schedule Tribes (Prevention of Atrocities)
Act, 1989, Police Station-Bilgram, DistrictHardoi as well as summoning order dated
09.04.2024 are hereby quashed so far it
relates to the present applicants.
---------
(2024) 5 ILRA 2085
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ B No. 3587 of 1985

Triloki Nath ...Petitioner
Versus
J.D.C. & Ors. ...Respondents

Counsel for the Petitioner:
S.P. Shukla, Arvind Kr. Shukla, B.B. Singh,
S.N. Goswami, S.P. Shukla, Shitla Prasad
Tripathi

Counsel for the Respondents:
C.S.C. Sri Ashok Kr. Baladiha, D.C.
Mukherjee, Raj Mani Dubey

Civil
Law
-
Hindu
Adoptions
and
Maintenance
Act,
1956-Section
7Uncle(Naval Kishore) of Petitioner was the
original tenure holder -died issueless-after his
demise-Petitioner being nephew -succeededduring
consolidation
proceedings-opposite
party filed a case u/s 12 of the Act, 1953claiming his co-tenancy rights on the said
chak being an adopted son on the basis of
registered adoption deed-rejected-Appealallowed-Revision
by
Petitioner-dismissedimpugned-Hindu male can adopt a childconsent of wife is necessary-adoption deed
had sign of Naval Kishore, the adopted child
and his wife-sign of wife of Naval Kishore was
not there-no reason for his wife not signing itconsent should not necessarily be in writingcan be done by producing evidence -since no
consent of wife of late Naval Kishore nor in
writing nor in inference- impugned orders
quashed.

W.P. allowed. (E-9)

List of Cases cited:

1. Ghisalal & ors.. Vs Dhapubai (Dead) by LRs.
& ors.[AIR (2011) SC 644]

2. Uttam Chandra & ors. Vs St. of U.P & ors. -
Writ B No. 3822 of 2023

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Shri Shitla Prasad Tripathi,
learned counsel for petitioner, learned
counsel for respondent as well as Shri
Hemant Kumar Pandey, learned State
Counsel.

2. During the pendency of the
present writ petition, the petitioner has
expired and in his place his legal heirs
have been substituted and they will be
referred to as petitioner. Similarly, during
the pendency of the present writ petition,
respondent nos. 3, 4 and 5 have also
expired and their legal heirs have been
substituted and they will be referred to as
respondent.

3. The present writ petition has
been preferred for quashing of the
impugned
revisional
order
dated
25.05.1985 and the appellate order dated
07.01.1985.