Syed Aftab Husain Rizvi, J.

1. Heard Sri Ajay Sengar,learned counsel for the appellant, Sri Rajiv Kumar Tripathi, learned counsel for the informant and Sri Pankaj Saxena, learned Additional Government Advocate appearing for the State.

2. This criminal appeal has been preferred against impugned judgement and order dated 22.09.2021 passed by Special Judge (SC/ST Act), Jalaun at Orai on Application under Section 319 Cr.P.C. in Session Trial No.26 of 2019 (State Versus Shiv Kumar and others) pending before the Special Judge (SC/ST Act), Jalaun at Orai. By the impugned order learned Special Judge has summoned the appellant for facing trial under Sections 323, 504, 506 I.P.C. and 3(1)(Da and 3(1)(dha) of SC/ST Act.

3. On the application dated 17.01.2019 addressed to Chairman,SC/ST Commission,Lucknow, an F.I.R. in Case Crime No.046 of 2019 under Sections 323, 504, 506 I.P.C. and 3(1)(Da and 3(1)(dha) of SC/ST Act was registered on 16.06.2019 the appellant,Shripal @ Bhagwan Singh Pal @ Shripal Singh and two others, namely, Shiv Kumar and Ram Narayan alias Pappu. It was alleged in the F.I.R. that on 26.10.2018, the accused named in the F.I.R. abused and assaulted the complainant. They also used casteist remarks against complainant. They also hit the complainant on shoulders with shoes. After investigation charge-sheet has been submitted against co-accused, Shiv Kumar and Ram Narayan alias Pappu while the appellant,Shripal @ Bhagwan Singh Pal @ Shripal Singh was exonerated. During course of trial after the statement of PW 1, Monu Kumar, an application was moved under Section 319 Cr.P.C. to summon the accused-appellant,Shripal @ Bhagwan Singh Pal @ Shripal Singh. By the impugned order, the learned Special Judge has allowed application and summoned the appellant to face trial.

4. The contentions of learned counsel for the appellant are that coaccused, Shiv Kumar filed Civil Suit against the complainant being Suit No.357 of 2018 (Shiv Kumar Versus Harikesh and others). Due to aforesaid civil dispute, some quarrel occurred between the parties. The complainant on 15.11.2018 filed an application under Section 156 (3) Cr.P.C. before Special Judge against the appellant and two others, making allegations with regard to incident dated 26.10.2018 at 8 O'clock. After obtaining report from the concerned police station, learned Special Judge by order dated 10.01.2019 rejected the aforesaid application. On 16.06.2019, The F.I.R. was lodged against the appellant and two others on an application addressed to Chairman,SC/ST Commission,Lucknow. Pursuant to the F.I.R. the matter was investigated. The Investigating Officer after collecting evidence expunged the name of the appellant in aforesaid case and filed charge-sheet only against co-accused, Shiv Kumar and Ram Narayan alias Pappu. The complicity of the appellant was not found proved, therefore, his name was expunged. It is further submitted that during trial the complainant moved application under Section 319 Cr.P.C. Learned trial court while allowing the said application, has summoned the appellant. The impugned order has been passed without application of judicial mind and is not sustainable in the eye of law. It has been passed in a mechanical manner. It is arbitrary, unjust and illegal. Learned counsel has further contended that learned Special Judge has not recorded satisfaction that there appears sufficient ground to summon the appellant for facing trial which is necessary. It is also contended that in Hardeep Singh Versus State of Punjab and others decided on 10.01.2014, Criminal Appeal No.1750 of 2008 the Hon'ble Apex Court has laid down proposition of law with regard to application under Section 319 Cr.P.C. and it has been observed that:

"Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner".

5. Learned counsel has further contended that aforesaid proposition of law has been laid further on 03.04.2014 in Babubhai Bhimabhai Bokhiria and others Versus State of Gujrat and others in Criminal Appeal No.735 of 2014 @ Special Leave Petition(Crl.) No.9184 of 2008 and Dev Wati and others Versus State of Haryana and another in Criminal Appeal No.134 of 2019 (arising out of SLP (Criminal) No.1705 of 2015 decided on 24.01.2019. It has been held that the test that has to be applied is of a degree of satisfaction which is more than that of a prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, may lead to conviction of the proposed accused. In the absence of such satisfaction, the Court should refrain from exercising the power under Section 319 Cr.P.C.

6. It is lastly contended that there is no averment that the appellant does not belong to Scheduled Caste community and hence provisions of SC/ST Act are not attracted in the present case. On this point, learned counsel again placed reliance on the judgement of this Court in Prashant Versus State of U.P. and another passed in Criminal Misc. Application (U/S 482 Cr.P.C.) No.2608 of 2021 decided 08.02.2021.

7. Learned A.G.A. as well as learned counsel for the informant submitted that the appellant was named in the F.I.R. with specific role. The complainant has also supported the allegations of the F.I.R. but the Investigating Officer in collusion with the appellant has exonerated him. During the course of trial, the complainant has been examined as PW1 and in his statement he has made allegations against the appellant also regarding his complicity in the incident. It is specifically mentioned in the F.I.R. that the complainant belongs to Scheduled Caste community while accused persons are of forward class. Learned A.G.A. has further contended that after 2016 amendments, it is sufficient that the complainant is a member of Scheduled Caste and the accused are members of higher caste and all the three ingredients are to be fulfilled in the present case. It is also contended that there is no illegality in the impugned order. Learned Special Judge has discussed the evidence on record and then has passed the impugned order. Lastly, learned counsel for the informant has contended that non-bailable warrant has been issued by the trial court.

8. From perusal of the impugned order it is clear that learned Special Judge has narrated the facts mentioned in the application under Section 319 Cr.P.C.. He has quoted the statement of complainant recorded before the court as PW 1 as well as statement recorded in cross-examination. In the last para of the impugned order, learned Special Judge has observed that the complainant has given statement about active participation of the accused-appellant in the aforesaid incident and then has passed impugned order of summoning, so the impugned order is a reasoned one. The satisfaction is there. It is undisputed that complainant has attributed active role in his statement before the court against the appellant who was also named in the F.I.R. There are clear allegations against him regarding participation in the incident. So, there is no illegality or infirmity in the impugned law.

9. In the case cited by learned counsel for the appellant it is observed that the test that has to be applied is of a degree of satisfaction which is more than that of a prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, may lead to conviction of the proposed accused. The impugned order passes the aforesaid test. From the facts and material on record, it appears that there is sufficient evidence against the appellant and on the basis of it he can be tried in the present case.

10. The appeal is devoid of merits and it is, hereby, dismissed.

11. At this stage, learned counsel for the appellant has submitted that a direction be issued for expeditious disposal of bail in accordance with principles of law as laid down by the Hon'ble Apex Court in Satendra Kumar Antil Versus Central Bureau of Investigation and others reported in 2024 Crimes 139 (SC) case.

12. Considering submission made by learned counsel for the appellant it is directed that if any bail application is moved by the appellant, it shall be decided expeditiously in accordance with settled principle of law as propounded by the Hon'ble Apex Court in aforesaid case.