# Shiv Sagar @ Shiv Sagar Giri v. State of U.P. & Anr

- **Citation:** (2023) 10 ILRA 647
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-26
- **Case number:** Criminal Appeal No. 294 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-sagar-shiv-sagar-giri-v-state-of-u-p-anr-49497
- **Pages:** 5

## Headnote

Law
-Scheduled
Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Sections 3(1)(r),
3(1)(s) [formerly 3(1)Da, 3(1)Dha] -
Indian Penal Code, 1860 - Sections 323,
504, 506 - Code of Criminal Procedure,
1973 - Section 14-A(1) - Quashing of
Criminal Proceedings - Abuse of Process -
Lack of Public View - Criminal Appeal
Criminal Appeal No. 294 of 2022 challenging the
cognizance
and
summoning
order
dated
21.08.2021 in Special Trial No. 944/2021, under
Sections 323, 504, 506 IPC and Section 3(1)Da
of SC/ST Act, arising out of FIR No. 166/2021,
Police Station Payagpur, District Bahraich. The
appellant, aged 72, alleged false implication due
to enmity, noting the FIR was lodged on
05.06.2021, over five years after the alleged
incident (15.02.2015), based on a complaint to
the SC/ST Commission on 07.01.2021. The court
found the incident, alleged to have occurred at
the appellant's house gate, lacked public view, a
prerequisite for SC/ST Act offenses (Hitesh
Verma, Paras 9, 12). The injuries, reported six
days
later,
were
simple
and
appeared
manufactured. The FIR's delay and mechanical
charge-sheet filing indicated abuse of process.
Applying St. of Har. Vs Bhajanlal and Neeharika
Infrastructure,
the
court
held
that
the
allegations did not prima facie establish SC/ST
Act or IPC offenses, and conviction chances
were bleak. Entire proceedings, including the
summoning order, quashed qua the appellant.

Appeal allowed.

Case Law Cited:

## Text

10 All. Shiv Sagar @ Shiv Sagar Giri Vs. State of U.P. & Anr.
647
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him.

Illustrations

(a) When a person does an act with
some intention other than that which the
character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling on a
railway without a ticket. The burden of
proving that he had a ticket is on him."

22. Though the burden comes to the
shoulder of the defence to explain the fact
which is specially within the knowledge of
the accused but before that it would be duty
of the prosecution to discharge its initial
burden.

23. In Kailash Chand Vs. State of
Rajasthan, (2017) 11 SCC 268, it has been
held that it is trite that prosecution has to
stand on its own legs and sufficient
evidence should be produced to prove the
allegation, no aid of Section 106 can be
taken by the trial court. It was a case of
custodial torture and death in which it has
been held that when prosecution's own
case, as set up in charge-sheet, in support of
which evidence is given, does not prove the
allegation of killing, no aid of Section 106
can be taken by the trial court.

24. So far as the presumption under
Section 113B is concerned which arises in
case of unnatural death of a married lady
within seven year of her marriage, such
presumption would not occur automatically
if the prosecution has not discharge its
initial duty. In this case it has been prove
that except one injection spot on the left
wrist of the deceased, no any other mark of
injury was found. In this case the
prosecution could not discharge its initial
burden to prove the case beyond reasonable
doubt and contrary to that on the basis of
suicide note it has been proved that the
deceased had herself committed suicide for
unknown reasons, therefore, the accused
persons cannot be held guilty.

25. On the basis of above discussion,
this Court is of the considered view that the
impugned judgement and order of acquittal
dated 26.05.1998 passed by the learned
6th-Additional Sessions Judge, Meerut is
factually and legally correct and the same
needs no interference by this Court in
exercise of its revisional jurisdiction. The
revision is devoid of merit and is liable to
be dismissed.

26. Accordingly, this revision is
dismissed.
The
aforesaid
impugned
judgment and order of acquittal is affirmed.

27. Let the original records alongwith
a copy of this judgment be sent back to the
learned 6th-Additional Sessions Judge,
Meerut, for consignment.
----------
(2023) 10 ILRA 647
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.09.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 294 of 2022

Shiv Sagar @ Shiv Sagar Giri ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Pradeep Kumar Shukla
648 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
G.A.

Criminal
Law
-Scheduled
Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Sections 3(1)(r),
3(1)(s) [formerly 3(1)Da, 3(1)Dha] -
Indian Penal Code, 1860 - Sections 323,
504, 506 - Code of Criminal Procedure,
1973 - Section 14-A(1) - Quashing of
Criminal Proceedings - Abuse of Process -
Lack of Public View - Criminal Appeal
Criminal Appeal No. 294 of 2022 challenging the
cognizance
and
summoning
order
dated
21.08.2021 in Special Trial No. 944/2021, under
Sections 323, 504, 506 IPC and Section 3(1)Da
of SC/ST Act, arising out of FIR No. 166/2021,
Police Station Payagpur, District Bahraich. The
appellant, aged 72, alleged false implication due
to enmity, noting the FIR was lodged on
05.06.2021, over five years after the alleged
incident (15.02.2015), based on a complaint to
the SC/ST Commission on 07.01.2021. The court
found the incident, alleged to have occurred at
the appellant's house gate, lacked public view, a
prerequisite for SC/ST Act offenses (Hitesh
Verma, Paras 9, 12). The injuries, reported six
days
later,
were
simple
and
appeared
manufactured. The FIR's delay and mechanical
charge-sheet filing indicated abuse of process.
Applying St. of Har. Vs Bhajanlal and Neeharika
Infrastructure,
the
court
held
that
the
allegations did not prima facie establish SC/ST
Act or IPC offenses, and conviction chances
were bleak. Entire proceedings, including the
summoning order, quashed qua the appellant.

Appeal allowed.

Case Law Cited:

1. Hitesh Verma Vs St. of Uttarakhand, (2020)
10 SCC 710 (Paras 9, 12)

2. R.P. Kapoor Vs St. of Punjab, AIR 1960 SC
866 (Para 13)

3. St. of Har. Vs Bhajanlal, 1992 SCC (Cri) 426
(Para 13)

4. St. of Bihar Vs P.P. Sharma, 1992 SCC (Cri)
192 (Para 13)

5. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq, (2005) SCC (Cri) 283 (Para 13)

6. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Mah., AIR 2021 SC 1918 (Para 13)

7. S.W. Palankattkar Vs St. of Bihar, 2002 (44)
ACC 168 (Para 15)

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

1. Heard Mr. Pradeep Kumar Shukla,
learned counsel for the appellant, Ms.
Charu Singh, learned A.G.A.-I for the State
and perused the entire record.

2. As per the office report dated
16.03.2022 notice has already been served
upon opposite party No.2 but till no counter
affidavit has been filed on behalf of the
opposite party No.2 nor any counsel is
present today to represent the opposite
party No.2.

3. Learned Counsel for the appellant
presses urgency in the matter and submits
that the appellant is an old person and is
aged about 72 years. Thus, this Court has
no option but to proceed for final
arguments in the matter.

4. This Criminal Appeal under
Section 14-A (1) of The Scheduled Castes
&
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 has been preferred to
quash entire criminal proceeding of Special
Trial No.944/2021 (State vs. Vinod &
Another),
including
cognizance
and
summoning order dated 21.08.2021 under
Section 323, 504 and 506 I.P.C. and
Section 3(1)Da of SC/ST Act, passed by
Additional Session Judge/Special Judge
(SC/ST Act), Bahraich, arising out of F.I.R.
No.166/2021 under Section 323, 504 and
506 I.P.C. and Section 3(1)Da & Dha of
SC/ST
Act,
Police
Station-Payagpur,
10 All. Shiv Sagar @ Shiv Sagar Giri Vs. State of U.P. & Anr.
649
District-Bahraich. It is further prayed on
behalf of the appellant that the proceedings
of the abovementioned case may be stayed.

5. Learned counsel for the appellant
submits that the appellant is innocent and
has been falsely implicated in the present
case due to enmity. The appellant is a law
abiding and is aged about 72 years, no such
incident took place as alleged by opposite
party No.2. He further highlighted this fact
that as per the first information report the
date of incident is 15.02.2015 which
allegedly occurred in front of the house of
the appellant and not in public place. He
further submits that the present F.I.R. has
been lodged on the basis of an application
given by the opposite party No.2 to the
SC/ST Commission on 07.01.2021 i.e. after
more than five years of the alleged incident
only with the intention to gain some
financial aid from the State Exchequer.
Adding to his arguments, he further
submits that in pursuance to the directions
issued by the SC/ST Commission, the
present
F.I.R.
has
been
lodged
on
05.06.2021 under Section 323, 504 and 506
I.P.C. and Section 3(1) Da and Dha of
SC/ST Act, thus, it appears that the present
F.I.R. has been lodged after taking legal
advice from the legal expert. He further
submits that as per the version of the F.I.R.
as well as from the averments made in the
application dated 07.01.2021, there is no
possibility at all that the alleged incident
took place in the public place or there was
any public view.

6. Learned Counsel for the appellant
further submits that as per its own case set
up by the opposite party No.2, that he was
passing from the gate of the house of the
appellant and the appellant started beating
him, thus, it appears that there is no
possibility of public view. He further
submits that as per the injury report which
was conducted after six days from the
alleged incident all the injuries appear to be
manufactured and are simple in nature, and
the opposite party No.2 only complained
for pain due to the injuries allegedly caused
to him by the appellant. He further submits
that the Investigating Officer of the present
case without considering the material on
record has submitted the charge-sheet in a
most mechanical manner and learned
Magistrate has also taken cognizance in a
routine manner, thus, the entire proceeding
is nothing but abuse of process of law.

7. Learned Counsel for the appellant
draws the attention of this Court that the
alleged incident did not happen in public
place nor it happened in public view, thus,
Section 3(1)(r) and (s) of SC/ST Act is not
attracted in the present case.

8. Several other submissions in order
to demonstrate the falsity of the allegations
made against the appellant have also been
placed forth before the Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused have also been touched upon at
length. It has also been pointed out that the
accused is not having any criminal history.

9. In support of his arguments,
learned counsel for the appellant has relied
upon a judgment rendered by the Hon'ble
Supreme Court in the case of Hitesh
Verma Vs. State of Uttarakhand, (2020)
10 SCC 710 and placed reliance upon para
13 and 18 of the aforesaid judgment, which
are reproduced hereunder:-

"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
650 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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 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."

10. Thus, learned counsel for the
appellant submitted that in view of the
judgment rendered by the Hon'ble Supreme
Court, no offence of S.C./S.T. Act are
applicable even though offence under the
provisions of I.P.C. are also not applicable.
It is further submitted by learned Counsel
for the appellant that the Investigating
Officer has submitted charge-sheet on the
basis of fake and fabricated version of the
complainant. The alleged incident never
occurred. There was no occasion for the
appellant to harass the opposite party no.2.
The summoning order passed by learned
court below is not sustainable in the eye of
law, therefore, it may be quashed.

11. Learned A.G.A-I opposed the
prayer for quashing of the aforesaid entire
criminal proceedings and submits that
prima facie offence is made out and the
Investigating Officer has rightly submitted
the charge-sheet after proper investigation.
She further submits that the appellant is not
entitled for any relief, thus, the present
appeal may be dismissed but she does not
dispute this fact that the present F.I.R. has
been
lodged
only
after
moving
an
application by opposite party No.2 on
07.01.2021 i.e. more than five years of the
alleged
incident
before
the
SC/ST
Commission and she is also unable to
dispute the contentions raised by learned
counsel for the appellant.

12. 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 as well as the application
moved by the opposite party no.2 before
the S.C./S.T. Commission after more than
five years of alleged incident, the incident
does not appears to happen, thus, Section
3(1) Da and 3(1) Dha of The Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989 is not
attracted against the appellant as the
incident did not occur in public place and
thus have no public view, even though the
other Sections of I.P.C. are also not
attracted against the appellant, as such,
10 All. Ashwnee Kumar & Anr.Vs. State of U.P. & Ors.
651
considering the law laid down by the
Hon'ble Apex Court in the case of Hitesh
Verma (Supra), this Court is of the view
that the learned court below has failed to
appreciate the material available on record. The
summoning order dated 21.08.2021 passed by the
court below is liable to be reversed and set aside as
well as entire proceedings of the aforesaid case is
liable to be quashed.

13. 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,
(Para-10) 2005 SCC (Cri.) 283 and (v)
Neeharika Infrastructure Pvt. Ltd. Vs. State of
Maharashtra, AIR 2021 SC 1918.

14. 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.

15. 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 real and substantial justice for
which the court alone exists.

16. Accordingly, the appeal is allowed and
in view of the observations made above, the entire
proceedings of Special Trial No.944/2021 (State
vs. Vinod & Another), including cognizance and
summoning order dated 21.08.2021 under Section
323, 504 and 506 I.P.C. and Section 3(1)Da of
SC/ST Act, passed by Additional Session
Judge/Special Judge (SC/ST Act), Bahraich,
arising out of F.I.R. No.166/2021 under Section
323, 504 and 506 I.P.C. and Section 3(1)Da &
Dha of SC/ST Act, Police Station-Payagpur,
District-Bahraich are hereby quashed so far as it
relates to the instant appellant, namely-Shiv
Sagar Alias Shiv Sagar Giri.

17. The party shall file computer
generated copy of such order downloaded from
the official website of High Court Allahabad or
certified copy issued from the Registry of the
High Court, Allahabad.

18.

The
concerned
Court/Authority/Official
shall
verify
the
authenticity of such computerized copy of the
order from the official website of High
Court
Allahabad
and shall make a
declaration of such verification in writing.
----------
(2023) 10 ILRA 651
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 410 of 2023

Ashwnee Kumar & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants: