# Rahul @ Abhinav Kumar & Ors v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 606
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-01
- **Case number:** Criminal Appeal No. 863 of 2021
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-abhinav-kumar-ors-v-state-of-u-p-anr-48141
- **Pages:** 4

## Headnote

A. Criminal Law - Scheduled Caste &
Schedule Tribe (Prevention of Atrocities)
Act, 1989 - Section 14(A)(1) - Section
3(1) (da) (dha) - Indian Penal Code, 1860
- Sections 147, 323, 324, 504 & 506summoning order-appellants had been
summoned through a printed order and
did not follow the dictum of law as
propounded by the Apex Court-at the
stage of summoning only prima facie
case is to be seen-it cannot be said that
no offence is made out-Disputed question
of fact cannot be adjudicated at this
stage-However, appellants got a right of
discharge application before the Trial
Court-quashing
of
charge-sheet
and
entire proceedings is refused.(Para 1 to
14)
2 All. Rahul @ Abhinav Kumar & Ors. Vs. State of U.P. & Anr.
607
The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

606 INDIAN LAW REPORTS ALLAHABAD SERIES
contradiction. In other words, the power
conferred on the court for perusal of the
diary under Section 172 of the Code is
not
intended
for
explaining
a
contradiction which the defence has
winched to the fore through the channel
permitted
by
law.
The
interdict
contained in Section 162 of the Code,
debars the court from using the power
under Section 172 of the Code for the
purpose of explaining the contradiction."

26. It is also material that prosecution
has not produced witnesses Kalwa and
Mange whose statement under Section 161
Cr.P.C. have been recorded. In the site
plan, it is mentioned that Kalwa had caught
accused Kareem at place "G" but he fled
away giving threat. The above discrepancy
on the part of investigation also makes the
prosecution case doubtful.

27. In view of the facts and
circumstances of the case and the evidence
available on record, we find that witnesses
produced by prosecution do not inspire
confidence that they are eye witnesses of
the incident. There was no source of light at
the place of incident and place of
occurrence is also doubtful. There are
lapses on the part of investigation.
Prosecution has failed to prove the charge
against the appellants - accused beyond
reasonable doubt. Accordingly, judgement
and order dated 17.11.2016 passed by the
learned trial court is not sustainable and is
liable to be set aside.

28. The appeals are allowed. The
judgment of conviction and order of
sentence dated 17.11.2016 is set aside.
Appellants are acquitted of the charged
offences. Appellants- Kareem and Shahjad
in Criminal Appeal Nos.29 of 2017 and 31
of 2017 respectively are in jail. They shall
forthwith be released from the jail, if not
wanted in any other case. Appellant Wajid
in Criminal Appeal No.30 of 2017 is on
bail. His bail bond and sureties stand
discharged.

Let a copy of the judgment along
with the original record be sent to the court
below for compliance
----------
(2022)02ILR A606
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.02.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 863 of 2021

Rahul @ Abhinav Kumar & Ors.
 ...Appellants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellants:
O.P. Tiwari

Counsel for the Opposite Parties:
G.A.,Manoj Kumar Gupta

A. Criminal Law - Scheduled Caste &
Schedule Tribe (Prevention of Atrocities)
Act, 1989 - Section 14(A)(1) - Section
3(1) (da) (dha) - Indian Penal Code, 1860
- Sections 147, 323, 324, 504 & 506summoning order-appellants had been
summoned through a printed order and
did not follow the dictum of law as
propounded by the Apex Court-at the
stage of summoning only prima facie
case is to be seen-it cannot be said that
no offence is made out-Disputed question
of fact cannot be adjudicated at this
stage-However, appellants got a right of
discharge application before the Trial
Court-quashing
of
charge-sheet
and
entire proceedings is refused.(Para 1 to
14)
2 All. Rahul @ Abhinav Kumar & Ors. Vs. State of U.P. & Anr.
607
The appeal is partly allowed. (E-6)

List of Cases cited:

1. Ankit Vs St. of U.P. & anr. JIC 2010 91) 432

2. R.P. Kapur Vs St. of Punj. (1960) AIR SC 866

3. St. of Har. Vs Bhajan Lal (1992) SCC (Cr.)
426

4. St. of Bih. Vs P.P. Sharma (1992) SCC (Cr.)
192

5. Zandu Pharmaceuticals Works Ltd. Vs Mohd.
Saraful Haq & anr.(2005) SCC (Cr.) 283

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. Heard learned counsel for the
appellants and learned A.G.A. for the State
through Video Conferencing.

2. This appeal has been preferred
under Section 14 (A) (1) of the Scheduled
Caste and Scheduled Tribe (Prevention of
Atrocities)
Act,
1989
against
the
summoning order dated 15.12.2020 passed
by Special Judge, (SC/ST Act), Unnao and
impugned charge-sheet No.162 of 2020
dated 3.7.2020 submitted by investigating
officer in Special Case No.9 of 2021,
F.I.R./Case Crime No. 136 of 2020, under
Sections 147, 323, 324, 504, 506 IPC and
Section 3(1)(da)(dha) of SC/ST Act, Police
Station- Purwa, District- Unnao.

3. Before arguing the case on merits,
learned counsel for the appellants while
pressing the present appeal submits that
after submission of charge sheet the
appellants have been summoned by order
dated 15.12.2020 and the court below while
summoning the appellants has materially
erred and did not follow the dictum of law
as propounded by the Hon'ble Supreme
Court in various cases that summoning in
criminal case is a serious matter and the
court below without dwelling into material
and visualizing the case on the touch stone
of probability should not summon accused
person to face criminal trial. It is further
submitted that the court below has not
taken into consideration the material placed
before the trial court along with charge
sheet and, therefore, the trial court has
materially
erred
in
summoning
the
appellants. The court below has summoned
the appellants through a printed order,
which is wholly illegal.

4. It has been further submitted that
the impugned summoning order dated
15.12.2020 is not a judicial order as it has
been passed on a printed proforma without
recording any reasons in support of
satisfaction for taking cognizance against
the appellants and merely the case, Section,
date of the order and date of the summon
have been filled.

5. It is next submitted that no offence
as described in the F.I.R. or in the
statement of the witnesses recorded during
the course of investigation has taken place
and the whole story as narrated in the
F.I.R. as well as in the statement of the
witnesses
has
been
cooked
and
manufactured, therefore, the court below
has materially erred in summoning the
appellants, as such the orders are liable to
be set aside.

6. Learned counsel for the appellants
has relied upon a decision of this Court in
Ankit Vs. State of U.P. and another JIC
2010 (1) 432 and has submitted that order
impugned being on a printed proforma is
clearly without application of judicial mind
and hence is liable to be quashed on this
ground alone.
608 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Learned A.G.A., however, opposes
the contention of learned counsel for the
appellants on the ground that the court
below keeping in view the charge sheet and
material submitted therewith, after applying
judicial
mind
and
finding
sufficient
material
on
record,
summoned
the
appellants along with other co-accused
persons to face trial and, therefore, there is
nothing illegal so far as the order of
summoning passed by the court below is
concerned.

8. I have considered the arguments
advanced by the learned counsel for the
parties and perused the record.

9. The certified copy of the impugned
summoning order dated 15.12.2020 has
been annexed with the appeal in support of
the contention. From a perusal of the above
order, it is evident that it is a typed
proforma, in which name of the parties,
police station, case crime number, section
of the offence and date fixed is filled by
someone in hand writing. It appears that the
blanks in the printed proforma filled up by
some Court employee and the Special
Judge, SC/ST Act, Unnao has just put his
initial which leads to the conclusion that
the Special Judge, SC/ST Act, Unnao has
passed the order in a mechanical manner
without application of judicial mind.

10. Despite there being a series of the
decisions of the Apex Court and this Court
disapproving such practice of passing
orders on printed proforma by the Special
Judge, SC/ST Act, Unnao, order being
passed in such a manner which shows that
judicial mind has not been applied in
passing the order. This type of order has
already been unsustainable by this Court in
the case of Ankit (supra) relying on in a
number of decisions of the Apex Court.

11. In view of the above, the
conduct of the trial court concerned in
passing orders on printed proforma by
filling up the blanks without application
of judicial mind is objectionable and
deserves
to
be
deprecated.
The
summoning of an accused in a criminal
case is a serious matter and order must
reflect that the learned Special Judge,
SC/ST Act had applied his mind to the
facts as well as law applicable thereto.

12. So far as quashing of charge sheet
and entire proceedings is concerned, from
the perusal of the material on record and
looking into the facts of the case at this
stage, it cannot be said that no offence is
made out against the appellants. All the
submission made relates to the disputed
question
of
fact,
which
cannot
be
adjudicated upon by this Court. At this
stage, only prima facie case is to be seen in
the light of the law laid down by Supreme
Court in cases of R.P. Kapur Vs. State of
Punjab, A.I.R. 1960 S.C. 866, State of
Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)
426, State of Bihar Vs. P.P.Sharma, 1992
SCC
(Cr.)
192
and
lastly
Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005
SCC (Cr.) 283. The disputed defence of the
accused cannot be considered at this stage.
Moreover, the appellants have got a right of
discharge according to the provisions
prescribed in Cr.P.C., as the case may be,
through a proper application for the said
purpose and he is free to take all the
submissions
in
the
said
discharge
application before the Trial Court.

13. The prayer for quashing the
proceedings and charge sheet is refused.

14. In view of the above, the present
appeal is partly allowed.
2 All. Shiv Singh Vs. State of U.P.
609

15. Accordingly, the impugned
cognizance
order
and
consequently
summoning order dated 15.12.2020 passed
by learned trial court is hereby quashed.
The trial court is directed to pass a fresh
order after applying the judicial mind.

16. Accordingly, this appeal under
Section 14(A)(1) is finally disposed of.

17. Let this order be communicated to
the court below for necessary compliance.
----------
(2022)02ILR A609
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 865 of 1985

Shiv Singh ...Appellant
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellant:
Sri V.P. Goel, Sri Atul Mehra, Sri Sudhir
Mehrotra

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860
-
Section
307
-
modification-quantum
of
sentenceincident took place in the year 1983 about
38 years ago and now appellant is more
than 57 year of age, the only bread earner
in his family-both the parties are distant
relative-accused suffered the agony of
conviction for more than 36 years-no
criminal antecedents have been shown to
his credit after passing of so much of long
period out of jail- At this stage, it would
be appropriate the accused be sentenced
with the period already undergone and
amount of fine be imposed.(Para 1 to 20)
B. The court in fixing the punishment for
any particular crime should take into
consideration the nature of offence, the
circumstances in which it was committed,
the degree of deliberation shown by the
offender. Sentence should not be either
excessively harsh or ridiculously low.
While
determining
the
quantum
of
sentence, the court should bear in mind
the principle of proportionality. the impact
on the society as a whole has to be seen.
It is therefore, necessary to avoid undue
leniency in imposition of sentence. the
criminal justice jurisprudence adopted in
the
country
is
not
retributive
but
reformative. at the same time, undue
harshness should also be avoided keeping
in
view
the
reformative
approach
underlying in our criminal justice system.
(Para 10 to 16)

The appeal is partly allowed. (E-6)

List of cases cited:

1. Mohd Giasuddin Vs St. of A.P. (1977) AIR SC
1926

2. Sham Sunder Vs Puran (1990) 4 SCC 731

3. St. of M.P. Vs Najab Khan (2013) 9 SCC 509

4. Jameel Vs St. of U.P. (2010) 12 SCC 532

5. Guru Basavraj Vs St. of Karn. (2012) 8 SCC
734

6. Deo Narain Mandal Vs St. of U.P. (2004) 7
SCC 257

7. Shyam Narain Vs St. (NCT of delhi) (2013) 7
SCC 77

8. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

9. St. of Punj Vs Bawa Singh (2015) 3 SCC
441

10. Raj Bala Vs St. of Har. (2016) 1 SCC 463