# Naseem Khan v. State of U.P. & Anr. 1118 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 8 ILRA 1117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-02
- **Case number:** Application U/s 482 No. 4472 of 2020
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naseem-khan-v-state-of-u-p-anr-1118-indian-law-reports-allahabad-series-52408
- **Pages:** 5

## Headnote

Criminal Law -Indian Penal Code,1860 -
Sections 147, 279, 323, 427, 504 & 506 -
The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3(1)(r) and (s) -alleged road
rage
incident
lacked
evidence
of
intentional
caste-based
abuseinvestigation
was
cursory,
with
no
evidence of prior acquaintance-no intent
to insult based on caste-no independent
witnesses were examined- charge sheet
and proceedings quashed- application
allowed. (Paras 10,11 and 12)

HELD:
Above referred statement does not disclose
that applicants were prior acquainted or
they got knowledge during occurrence that
complainant and co-passenger belongs to
SC/ST that there was an intention to insult
them
being
SC/ST,
therefore,
basic
ingredients of Section 3(1)(Da)(Dha) of
SC/ST Act are absolutely missing. (para 10)

The Investigating Officer has in a very
cursory and casual manner investigated the
case
without
ascertaining
that
basic
ingredients of Section 3(1)(Da)(Dha) of
SC/ST Act was prima facie made out or not.
(Para 11)

In view of above, Court also takes note that
it was case of road rage and there was no
injury report placed on record. Court also
takes
note
that
source
of
name
of
applicants as referred in statement were
independent persons allegedly present at
the place of occurrence, however, none of
independent witness was examined during
investigation
which
also
indicates
that
investigation was conducted in a very
cursory manner. No attempt was taken for
conducting identification parade. (Para 12)

Application allowed. (E-14)

## Text

8 All. Naseem Khan Vs. State of U.P. & Anr.
1117
conclusion that no offence under
Section 307 I.P.C. was made out
and only a case under Section 504
I.P.C. was made out against the
applicant and so a charge-sheet
under Section 504 I.P.C. was
submitted against the applicant. He
contended that in view of the
aforesaid Explanation to Section
2(d) Cr.P.C. the case could not
proceed as a police case in respect
of an offence punishable under
Section 504 I.P.C. because the
offence under Section 504 I.P.C. is
non-cognizable and so the case
could proceed only as a complaint
case in view of the aforesaid
Explanation.
6. The above contention of
the
learned
Counsel
for
the
applicant is correct. I, therefore,
allow
this
application
under
Section 482 Cr.P.C. to this extent
that the cognizance taken by the
Magistrate in the case on the basis
of the report of the police for the
offence punishable under Section
504 I.P.C. and the orders passed by
him for issuing warrant against the
applicant are hereby quashed. The
Magistrate shall not proceed with
the case as a State case but he shall
proceed with it as a complaint case
as provided in the Explanation to
Section 2(d) Cr.P.C. and he shall
follow the procedure prescribed for
hearing of a complaint case."

20. In view of the settled law, the
learned Magistrate-III, Faizabad ought to had
not proceeded on the police report without
applying judicial mind inasmuch as all the
offences as mentioned in the N.C.R. as noncognizable and proper course of the action for
the Magistrate was to treat the matter as
complaint under the provisions as enshrined
under Explanation to Section 2(d) Cr.P.C.
Further the Magistrate could not have taken
cognizance of the offence after three years
from the date of offence as the offences
alleged under Sections 323, 504, 506 I.P.C.
are punishable with maximum sentence of
one year and two years respectively. Further
perusal of the impugned order shows that the
learned Judicial Magistrate-III had no
occasion to condone the delay in terms of
Section 473 Cr.P.C. before taking cognizance,
therefore, the impugned order is without
jurisdiction.

21. This being the position, this
Court is of the considered view that the
instant application deserves to be allowed.

22. Consequently, the summoning
order dated 07.12.2013, passed by Judicial
Magistrate-III,
Faizabad
in
Case
No.1197/2012, State Vs. Ram Ajore & others,
under Sections 323, 504, 506 I.P.C., Police
Station Gosainganj, District Faizabad and all
other consequential proceedings emanating
therefrom are quashed.

23. The application is allowed.
----------
(2024) 8 ILRA 1117
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/s 482 No. 4472 of 2020
With
Application U/s 482 No. 5674 of 2020

Naseem Khan ...Applicant
Versus
State of U.P. & Anr. ...Respondents
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Sri Vijay Singh Sengar, Sri Mohd. Shahibe Alam
Khan, Sri Wahid Jamal

Counsel for the Respondent:
G.A.

Criminal Law -Indian Penal Code,1860 -
Sections 147, 279, 323, 427, 504 & 506 -
The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3(1)(r) and (s) -alleged road
rage
incident
lacked
evidence
of
intentional
caste-based
abuseinvestigation
was
cursory,
with
no
evidence of prior acquaintance-no intent
to insult based on caste-no independent
witnesses were examined- charge sheet
and proceedings quashed- application
allowed. (Paras 10,11 and 12)

HELD:
Above referred statement does not disclose
that applicants were prior acquainted or
they got knowledge during occurrence that
complainant and co-passenger belongs to
SC/ST that there was an intention to insult
them
being
SC/ST,
therefore,
basic
ingredients of Section 3(1)(Da)(Dha) of
SC/ST Act are absolutely missing. (para 10)

The Investigating Officer has in a very
cursory and casual manner investigated the
case
without
ascertaining
that
basic
ingredients of Section 3(1)(Da)(Dha) of
SC/ST Act was prima facie made out or not.
(Para 11)

In view of above, Court also takes note that
it was case of road rage and there was no
injury report placed on record. Court also
takes
note
that
source
of
name
of
applicants as referred in statement were
independent persons allegedly present at
the place of occurrence, however, none of
independent witness was examined during
investigation
which
also
indicates
that
investigation was conducted in a very
cursory manner. No attempt was taken for
conducting identification parade. (Para 12)

Application allowed. (E-14)
(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. These applications are heard qua
to surviving applicants. They are aggrieved
by
impugned
charge
sheet
dated
27.06.2019 as well as entire proceedings of
SST No. 34/2019 (State vs. Faheem and
others) arising out of Case Crime No.
204/2019 under Sections 147, 279, 323,
427, 504, 506 IPC and 3(1)(r) and (s) of
SC/ST Act, Police Station- Jalaun, District-
Jalaun, pending before Special Judge
(SC/ST Act), Jalaun at Orai.

2. Trial Court took cognizance of
offence on 27.11.2019 and applicants were
summoned by order of date though above
referred both orders are not specifically
challenged though it might fall within
'further entire proceedings'.

3. S/Sri Mohd. Shahibe Alam
Khan and Wahid Jamal, learned advocates
for applicants have submitted that it was a
case of road rage. Complainant has alleged
that he was driving an ALTO car along with
co-passenger and there was traffic jam
during which applicant (Faheem) who was
driving Tavera without looking at rear side,
reversed his Tavera and hit the ALTO car
on its front side and when it was objected,
said Faheem called other applicants and not
only
assaulted
complainant
and
copassenger but also damaged his car and
hurled caste abuses as well.

4. This Court has passed following
order on 04.02.2020 -:

"The applicant, by means
of this application under Section
482 Cr.P.C., has invoked the
inherent jurisdiction of this Court
with prayer to quash the charge
8 All. Naseem Khan Vs. State of U.P. & Anr.
1119
sheet No. 01 of 2019, dated
27.06.2019
as
well
as
entire
proceeding of S.S.T. No. 34 of
2019 (State Versus Faheem and
others), arising out of Case Crime
No. 204 of 2019, under Sections
147, 279, 323, 427, 504, 506 I.P.C.
and 3(1) Da, Dha SC/ST Act,
Police
Station
Jalaun,
District
Jalaun.
Heard learned counsel for
applicant, learned A.G.A. for State
and perused the record.
Ms. Divya Ojha, Advocate,
holding brief of Sri Vijay Singh
Sengar,
learned
counsel
for
applicant argued that from the very
perusal of first information report,
it is apparent that no abuse or
assault is with intention to assault
or abuse because of being a
member of scheduled caste or
scheduled tribe community. It was
a case of road rage, wherein no
such
question
arises.
Moreso,
complainant himself has written in
its F.I.R. that he was not aware of
accused
persons,
rather
upon
making query from the persons
present thereat, he could gather the
name of driver and other accused
persons, leaving behind 7 to 8
others, involved in it. Thereafter, no
identification parade for fixation of
identity by Investigating Officer
was conducted and applicant has
been
implicated
and
charge
sheeted, as above, for his no fault.
The matter requires hearing
on merit.
Learned
A.G.A.
has
accepted notice on behalf of
opposite party No. 1.
Issue notice to opposite
party No. 2 returnable at an early
date.
Steps be taken within ten
days.
Opposite party no. 2 may
file counter affidavit within four
weeks. Learned A.G.A. may also
file counter affidavit within the
same period. Rejoinder affidavit, if
any, may be filed within two weeks
thereafter.
List
in
the
week
commencing 13th April, 2020.
Till the next date of listing,
no coercive action shall be taken
against the applicant in the above
mentioned case."

5.

Learned
advocates
for
applicants have submitted that applicants
have
no
prior
acquaintance
with
complainant and co-passenger travelling in
ALTO, therefore, there was no chance that
he could know their caste, as such, basic
ingredients of Section 3(1)(Da)(Dha) of
SC/ST Act are not made out since there is a
requirement that there must be intentionally
insult,
however,
such
intention
was
absolutely missing since the applicants had
no knowledge that complainant and his copassenger belongs to SC/ST.

6. Learned advocates have further
submitted that name of applicants were
disclosed allegedly on basis of information
given by independent person, however,
none
of
independent
witnesses
was
examined during investigation. The I.O. has
also not able to ascertain names of 7-8
unknown persons and that complainant and
his associate was not legally medical
examined.
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Aforesaid submissions were
opposed by Sri R.K. Mishra, learned
AGA for State that investigation was
conducted in a fair manner. Statement
of complainant was recorded who has
supported the prosecution case though it
has not been denied that no independent
witness
was
examined
despite
occurrence was allegedly took place in
public place and name of applicants
were also disclosed by public as well as
that
there
was
no
evidence
that
applicants were prior acquainted with
complainant
and
co-passenger
and
applicants knew that they belong to
SC/ST. No identification parade was
conducted
for
identification
of
assailants.

8. Heard learned counsel for
parties and perused the record.

9. I have carefully perused
statement of the complainant and for
reference, same is quoted below -:

"26.4.2019/
ियान
वादी
.....िदररयाफत श्री राजेर् आनन्द उम्र 40 विश पुत्र श्री
नानक चन्द वमाश बन० मु० बर्वपुरी उरई थाना कोतवािी
उरई बजिा जािौन मो० नं0 9515153139 ने
पूछने पर प्रथम सूचना ररपोर्श का समथशन करते हुए
िताया बक बदनांक 25.4.19 को राबत्र करीि 11.30
बमनर् पर मािौगढ अपने पेरोि र्ैंक से अपनी गाडी
आल्र्ो कार नं० यूपी 92के-0263 से उरई जा रहा
था बक कोंच चौराहे पर सडक बनमाशण की वजह से जाम
िगा हुआ था मेरे सामने यू०पी० 77एस-3115 तवेरा
गाडी खडी थी बजसके चािक ने गाडी जगह बमिने पर
गाडी िैक बकया व सामने से मेरी गाडी में र्क्कर मार दी
तो मैने उससे कहा बक आप को इतनी िडी गाडी नहीं
बदखाई दे रही है। बजस पर उसने जाबत सूचक र्ब्दो में
गािी गिौच देना र्ुरू कर बदया मैने कहा बक गािी
क्यो दे रहे हो तो िोिा अिी िताता ह ूँ और फोन करके
अपनी साथी 1-नौर्ाद पुत्र स्व० र्ाबकर 2-नसीम पुत्र
हकीम उल्िा 3-आबमर पुत्र हकीम उल्िा 4-ररयाज
पुत्र मुन्ना 5-सारूख पुत्र नाबकर 6-सरताज नाऊ 7-78 िोग नाम पता अज्ञात िोगो को िुिाकर मेरे व मेरे
साथी र्ीिू पुत्र सिीम के साथ गाडी से खींचकर
मारपीर् करने िगे व मेरे गाडी के दाबहने साईड के गेर्
के दोनो व पीछे का र्ीर्ा ईर्ा मारकर तोड बदये व जाते
समय िोिे अगर कही िताया तो जान से मार देगे उक्त
िोगो के जाने के िाद मैने आस पास के िोगो से पता
बकया तो पता चिा बक गाडी का चािक फहीन,व
उसके साथी नौसाद पुत्र स्व० र्ाबकर, नसीम व आबमर
पुत्रगण हकीम उल्िा, ररयाज पुत्र मुन्ना, साहरूख पुत्र
नाबकर, सरताज नाऊ व सात आठ िोगो और थे बजनके
नाम पता नहीं जानते बजन्हे सामने आने पर पहचान
सकता ह ूँ। इन सिी िोगो ने ही मेरे गाडी के र्ीर्े ईर्ो
से तोडे व मेरे साथ के साथ मारपीर् की बजससे कपडे
िी फर् गये मै कोरी जाबत का ह ूँ। मेरे द्वारा घर्ना की
ररपोर्श बदनांक 26.04.2019 को थाना कोतवािी
जािौन में दजश करा दी गयी है। यही मेरा ियान है।"

10. Above referred statement does
not disclose that applicants were prior
acquainted or they got knowledge during
occurrence that complainant and copassenger belongs to SC/ST that there was
an intention to insult them being SC/ST,
therefore, basic ingredients of Section
3(1)(Da)(Dha) of SC/ST Act are absolutely
missing.

11. The Investigating Officer has
in a very cursory and casual manner
investigated the case without ascertaining
that
basic
ingredients
of
Section
3(1)(Da)(Dha) of SC/ST Act was prima
facie made out or not.

12. In view of above, Court also
takes note that it was case of road rage and
there was no injury report placed on record.
Court also takes note that source of name
of applicants as referred in statement were
independent persons allegedly present at
the place of occurrence, however, none of
independent witness was examined during
investigation which also indicates that
8 All. Asad Ali @ Munna & Ors. Vs. State of U.P. & Anr.
1121
investigation was conducted in a very
cursory manner. No attempt was taken for
conducting identification parade.

13. In aforesaid circumstances, this
Court finds that present is a fit case where
inherent powers of this Court could be
invoked, hence, impugned charge sheet
dated 27.06.2019 arising out of Case Crime
No. 204/2019 under Sections 147, 279,
323, 427, 504, 506 IPC and 3(1)(r) and (s)
of SC/ST Act, Police Station- Jalaun,
District-
Jalaun
as
well
as
further
proceedings of SST No. 34/2019 (State vs.
Faheem and others) including cognizance
and summoning order pending before
Special Judge (SC/ST Act), Jalaun at Orai
are hereby quashed.

14. Application is, accordingly,
allowed.

15. Registrar (Compliance) to take
steps.
----------
(2024) 8 ILRA 1121
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.08.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/s 482 No. 5465 of 2024

Asad Ali @ Munna & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Anand Mani Tripathi, Pragati Tiwari, Yugal Kishor
Tripathi

Counsel for the Respondents:
G.A., Anand Prakash Singh

Criminal
Law
-
Criminal
Procedure
Code,1973 -Section 319 - was preferred by
the prosecution-allowed by impugned order-and
summoned the accused-The case of the
applicants is based upon the 'evidence' collected
by the I.O. during investigation-"the word
"evidence" in Section 319 CrPC means only such
evidence as is made before the court-"while
exercising the powers under Section 319 CrPC -
the court is not required and/or justified in
appreciating the deposition/evidence of the
prosecution witnesses on merits which is
required to be done during the trial.

Application rejected. (E-9)

List of Cases cited:

1. Hardeep Singh Vs St. of Punj., (2014) 3 SCC
92,

2. Brijendra Singh & ors.Vs St. of Rajasthan,
(2017) 7 SCC 706

3. Rajesh & ors.Vs St. of Har., (2019) 6 SCC
368

4. Manjeet Singh Vs St. of Har. & ors., (2021)
18 SCC 321

5. Sukhpal Singh Khaira Vs St. of Punj., (2023)
1 SCC289

6. Yashodhan Singh & ors.Vs St. of U. P. & ors.,
(2023) LiveLaw (SC) 576 : 2023 INSC 652

7. Yashodhan Singh & ors. Vs St. of U. P. &
ors.4235 of 2022

8. Jogendra & ors.Vs St. of Bihar & anr.,
reported in (2015) 9 SCC 244

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri A. M. Tripathi and Sri Yugal
Kishor Tripathi, learned counsel for the
applicants, and Sri S. P. Tiwari, learned A.G.A.
for the State and Sri Anand Prakash Singh,
learned counsel for opposite party No. 2.