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2011 Supreme(All) 1355
[2011(5) ADJ 693]
ALLAHABAD HIGH COURT
BEFORE :VINOD PRASAD, J.
ARUN KUMAR SINGH AND OTHERS ....Revisionists
Versus
STATE OF U.P. AND ANOTHER ....Opposite Parties
(Criminal Revision No. 1932 of 2011, decided on 5th May, 2011)
Counsel :
P.N. Pandey and R.N. Pandey for the Revisionists; A.G.A. for the Opposite Parties.
Headnote:(A) Criminal Procedure Code, 1973—Sections 397, 401, 200, 202, 156(3) and 210—(Indian) Penal Code, 1860—Sections 323, 504, 506, 452 and 379—Summoning—Revision against—FIR—Refusal to—Complaint—Statement of complainant and witnesses recorded—Summoning order—Assault is one of ingredients of Section 452—Any body who has an idea to assault, if he acts on with that intent, it is preparation as contemplated under Section 452—Preparation does not mean physical preparation—In present case revisionist entered into complainant’s house after making preparation to assault victim—If some body snatched earring of victim without her consent, it is theft in term of Section 379—Summoning of accused under said section justified—However, in absence of predominent motive to commit theft—No offence under Section 394 disclosed—Revisionist tored clothes of complainant and her daughter—Offence under Section 354 made out. [Paras 8, 9, 10, 11, 13 and 15]
(B) (Indian) Penal Code, 1860—Section 452—”Preportion”—Connotation of—If some body makes gesture and trespass into house of victim habouring an idea of assault—It is preparation within meaning of Section 452. [Para 8]
Hon’ble Vinod Prasad, J.—Heard Sri P.N. Pandey and Sri R.N. Pandey learned counsel in support of this revision and learned A.G.A. in opposition.
2. Two real sibling brothers Udai Narain Singh and Deep Narain Singh revisionist Nos. 2 and 3 alongwith 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 v. Deep Narain and others, for offences under Sections 323, 504, 506, 452 and 379 I.P.C. Police Station Parashurampur, District Basti.
3. 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 alongwith 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 ear ring of the daughter Shanti and even torned of their clothes. This incident was witnessed by Sandheen and Fazal and many other co-villagers.
4. 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.
5. 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 mala fide 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.
6. 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.
7. It was lastly submitted
