Court No. - 88

Case :- CRIMINAL APPEAL No. - 7841 of 2022

Appellant :- Buddhu Harijan And 2 Others

Respondent :- State of U.P. and Another

Counsel for Appellant :- K.K.Rao,Sarvjeet Singh Chauhan

Counsel for Respondent :- G.A.,Vishveshwar Mani Tripathi

Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the appellants, learned counsel for the

respondent No.2 and learned A.G.A. for the State.

2. This appeal has been preferred under section 14 A (1) of

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)

Act, 1989 (hereinafter referred as SC/ST Act) against the

summoning order dated 27.07.2022, passed by learned Additional

Sessions Judge/Special Judge, (SC/ST Act), Gorakhpur, in

Complaint Case No.177 of 2017 (Smt. Guddi Vs. Buddhu and

others), under Sections 302 / 506 IPC and Section 3(2)(v) of

SC/ST Act, P.S. Jhangha, District Gorakhpur, whereby, the

appellants have been summoned for aforesaid offences.

3. Learned counsel for the appellants has argued that impugned

order is against facts and law and thus, liable to be set aside. The

first information report of this case was lodged by the respondent

No.2 by moving an application under Section 156 (3) CrPC,

wherein, false allegations were levelled that appellants have

murdered six years old son of respondent/complainant but during

investigation police found that the deceased child has accidentally

fallen into the hole of specific tank and that the appellants were not

involved in the alleged incident and thus, the police have

submitted final report. The respondent No.2 has filed a protest

petition, which was registered as a complaint case and thereafter,

the respondent/complainant was examined under Section 200

CrPC and two witnesses were examined under Section 202 CrPC

and after that impugned order was passed by the court below.

Learned counsel submitted that all the appellants belong to

scheduled caste and thus, no offence at all the under Section 3 (2)

(v) of SC/ST Act is made out against them. Further, the court

below has not complied the provisions of Section 202 (2) CrPC.

Referring to proviso of clause (2) of Section 202 CrPC, it was

submitted that the case was exclusively triable by the court of

session, and thus, the court has to call upon the complainant to

produce his all witnesses and examine them on oath but in the

instant matter merely two witnesses were examined under section

202 CrPC and thus, all the witnesses were not examined. It was

stated that provisions of Section 202 (2) CrPC have not been

complied with. In view of all these facts and circumstances the

impugned order is not sustainable and liable to be set aside.

4. Learned A.G.A and learned counsel for respondent No.2 have

opposed the appeal and argued that the respondent

No.2/complainant, in her statement under Section 200 CrPC, and

the witnesses examined under Section 202 CrPC, have made

allegations regarding involvement of appellants in the alleged

incident and that the son of respondent No.2 was murdered by

them. However, it could not be disputed that the appellants are also

members of scheduled caste and that in inquiry under Section 202

CrPC, only two witnesses were examined. Referring to above

stated facts, it was submitted that there is no illegality or perversity

in the impugned order.

5. I have considered rival submissions and perused record.

6. It is well settled that at the stage of summoning the accused on

the basis of a private complaint all that is required is a satisfaction

by the Magistrate that there is sufficient ground to proceed against

the accused in the light of the records made available and the

evidence adduced by the complainant. At that stage the Magistrate

has to find out whether prima facie case made out against the

accused or not. The Magistrate is not required to meticulously

appreciate the evidence at the stage of 203/204 Cr.P.C. All that the

Magistrate has to do is to