Neutral Citation No. - 2023:AHC:120972

Court No. - 81

Case :- CRIMINAL APPEAL No. - 1956 of 2023

Appellant :- Ramjan

Respondent :- State of U.P. and Another

Counsel for Appellant :- Ashwani Kumar Pathak

Counsel for Respondent :- G.A.

Hon'ble Mohd. Faiz Alam Khan,J.

Shri Akhil Ranjan Advocate has filed his Vakalatnama/ power

on behalf of opposite party no.2, which is taken on record.

Heard Shri Ashwani Kumar Pathk, learned counsel for the

appellant and Shri Akhil Ranjan Advocate, learned counsel for

opposite party no.2 as well as learned Additional Government

Advocate for the State and perused the record.

The instant appeal under Section 14-A (1) of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

has been filed by the appellant, Ramzan with the prayer to

allow this appeal and set aside the charge sheet dated 02.08.202

and cognizance and summoning order dated 05.08.2022, in

Session Trial No. 1491/2022, arising out of case Crime No.

154/2022, under Sections 147, 323, 506, 427 IPC and 3(1) Da,

Dha SC/ST Act, Police Station Campierganj, District

Gorakhpur, pending before the Additional Session Judge/

Special Judge POCSO First Court No.1, District Gorakhpur.

Learned counsel for the appellant in order to project that the

involvement of the instant appellant/ accused is only on the

basis of his relationship with the main accused- Habibullah

submits that appellant has not been committed any offence

against the victim and he has been falsely implicated.

It is further submitted that in the statement of the prosecutrix

recorded under Section 164 Cr.P.C. she has not levelled any

allegation against the appellant/accused, however, the

Investigating Officer without investigating the allegation of

the FIR in right perspective has submitted the charge sheet.

It is also submitted that at present the appellant is not available

in India, as he is in Saudi Arabia in connection with his

livelihood and despite the efforts he may not appear before the

Special Court for the purpose of securing regular bail, however,

other family members of the appellant/ co-accused person have

secured the bail by appearing before the Special Court.

It is further submitted that the Special Court has not considered

the statement of the prosecutrix recorded under Section 164

Cr.P.C. in right perspective and has passed the summoning

order mechanically without application of judicial ind and the

same is liable to be set aside.

Learned A.G.A. has supported the impugned order.

Learned counsel for opposite party no.2 on the other hand

submits that after thorough investigation charge sheet has been

submitted and the Special Court after perusing the charge sheet

has taken cognizance and passed summoning order.

It is also submitted that at the stage of summoning only prima

facie case and sufficiency of material is required to be seen and

no in depth inquiry or appreciation of the evidence is

contemplated, thus there is no illegality in the summoning

order.

Having heard learned counsel for the parties and having

perused the record, it is evident that the main allegation in the

FIR as well as in the statement of the prosecutrix recorded

under Section 161 Cr.P.C. has been levelled against the co-

accused Habibullah @ Rajesh and the allegations with regard to

instant appellant is of teasing the victim at the instance of main

accused Habibullah. The allegation of outraging the modesty

has been stated in the FIR as well as in the statement of the

prosecutrix recorded under Section 161 Cr.P.C., however, the

same is missing in the statement of the victim recorded under

Section 164 Cr.P.C. However, it is the matter of trial as at the

stage of taking cognizance under Section 190(1) (b) Cr.P.C.

only prima facie case and sufficiency of material is required to

be seen. The distinction of taking cognizance under Section

190(1) (a) and 190 (1) (b) Cr.P.C. has been highlighted by the

Honb