Shashikant Sharma & Ors. v. State of Uttar Pradesh & Anr.

JUDGMENT

MEHTA, J.

¶1Leave granted.

¶2The instant appeal has been preferred by the accused ap pellants questioning the legality and validity of the Order dated 6 th April, 2023 passed by the learned Single Judge of the High Court of Judicature at Alla habad rejecting the Criminal Appeal No. 3107/2023 preferred by the accused appellants under Section 14A(1) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989(hereinafter being referred to as the ‘SC/ST Act’). The learned appellate Court affirmed the Order dated 14 th March, 2023 passed by the learned Special Judge SC/ST(PoA) Act, Hathras in Session Case No. 228/2021, rejecting the application for discharge filed by the accused appellants under Section 227 of the Criminal Procedure Code, 1973(hereinafter being referred to as the ‘CrPC’) and directing framing of charges against them for the offences punishable under Sections 147, 148, 149, 307, 323, 504 of Indian Penal Code, 1860(hereinafter being referred to as the ‘IPC’) and Section 3(2)(v)of the SC/ST Act. By the said Order, the learned Special Judge also directed that the accused appellants shall remain present in the Court on the appointed date.

¶3It may be mentioned that vide Order dated 19 th May 2023, this Court had directed that the bonds executed by the accused appellants in pursuance of the Order dated 2 nd September, 2022 passed by the High Court shall remain in force and non-bailable warrants which had been is sued at that stage, shall not be executed until further consideration.

¶4Learned senior counsel for the appellants, at the outset, conceded that so far as the offences punishable under IPC are concerned, the prayer for discharge would require extensive evaluation of evidence and hence, he gave up the challenge made on behalf of the accused appella nts to the Order framing charges qua these offences. However, the fervent contention of learned senior counsel was that the ingredients of Section 3(2)(v) of the SC/ST Act are not prima facie made out against the accused appellants from the admitted allegations of the prosecution and hence, the accused appellants deserve indulgence of this Court and the impugned orders are liable to be interfered with to this extent.

¶5Learned senior counsel contended that for the offence under Section 3(2)(v) of the SC/ST Act to be made out, there must be a specific allegation of the prosecution that the accused committed an offence punishable under the provisions of the IPC against a member of the Scheduled Caste/Scheduled Tribe knowing that the victim belongs to such community. Referring to the impugned orders, the allegations made in the FIR and the statements of the witnesses recorded during investigation under Section 161 CrPC, learned senior counsel pointed out that as per the highest case of prosec ution, the accused Vinod Upadhyay fired a gun shot at Rinku Thakur which hit him in the left thigh. The only projection made in the prosecution case regarding the offence under SC/ST Act was that the witness Virender Kumar being a member of SC community was subjected to casteist abuses by the accused appellants after the gunshot had been fired at Rinku Thakur. He urged that the entire thrust of the prosecution case regarding the offences committed under the provisions of the IPC is focussed qua Rinku Thakur and thus,there is no factual or legal basis for the charge framed against the accused appellants for the offence punishable under Sections 3(2)(v) of the SC/ST Act.

¶6Without prejudice to the above, learned senior counsel urged that the entire prosecution case is false and fabricated and lodged as a counterblast on account of political vendetta. He urged that the theory set up by the prosecution in the FIR and in the statement of the prosecution wit nesses that Rinku Thakur was caused a fire arm injury is patently falsified from the medicolegal report prepared by the Medical Jurist who examined Rinku Thakur opining that a boil/abscess was noticed on his thigh and no evidence of gun shot was found.

¶7He submitted thatit is the members of the complainant p arty who killed Pushpendra from the side of the accused appellants and, the reafter, in order to create defence, apatently false criminal case was registered against the accused appellants on fabricated allegations. On these grounds, learned senior counsel implored the Court to accept the appeal and reverse the impugned orders to the extent of the charge framed against the accused appellants for the offence punishable under Sections 3(2)(v) of the SC/ST Act.

¶8Per contra, learned AAG representing the State of Uttar Pradesh and learned counsel representing the complainant respondent no. 2 vehemently and fervently controverted the submissions of learne d counsel for the 1071 SHASHIKANT SHARMA & ORS. v. STATE OF UTTAR appellants. It was submitted that the accused appellants launched a concerted attack upon the members of the complainant party simply because they were canvassing for the other political party.

¶9The Court was taken through the order passed by the learned Special Judge with particular reference to the allegation that t he investigating officers were pressurised to give negative report under Section 173 CrPC. Using their political clout, the accused persons even managed to obstruct the lodging of FIR and with great difficulty and after intervention of the Court, the FIR was got registered. The investigation was manipulated at the instance of a former Cabinet Minister in the Government of Uttar Pradesh. They urged that from the statement of Virender Kumar recorde d under Section 161 CrPC, it is clearly borne out that after the accused persons had fired the gun shot at Rinku Thakur, they turned their attention towards the witness and hurled caste-based abuses towards him and th reatened him with dire consequences.

¶10As per the learned AAG appearing for the State of Uttar Pradesh and learned counsel for the complainant, the allegations set out in the FIR and statements of the witnesses examined under Section 161 CrPC clearly disclose necessary ingredients of the offences alleged and as per them, there is no scope for interference in the impugned orders. They sought dismissal of the appeal. These oral submissions have further been suppleme nted by written submissions which are virtually reiteration of what wa s argued before the Court.

¶11We have carefully considered the submissions made by the learned counsel at the Bar and have perused the material available on record.

¶12At the outset, it may be emphasised that in the written submissions filed on behalf of the State, the pertinent plea raised by the learned counsel for the appellants that necessary ingredients of the offe nce punishable under Section 3(2)(v) of the SC/ST Act are not made out from the admitted allegations of the prosecution, has not been specifically controverted. There cannot be any quarrel with the principles laid down in the judgments cited by the State counsel in the written submissions that at the stage of framing of charges, the Court is not required to undertake a meticu lous evaluation of evidence and even grave suspicion is sufficie nt to frame charge. Nevertheless, there is also a long line of precedents that from the admitted evidence of the prosecution as reflected in the documents filed by the Investigating Officer in the report under Section 173 CrPC, if the necessary ingredients of an offence are not made out then the Court is not obligated to frame charge for such offence against the accused. Reference in this regard may be made to the judgment rendered by this Court in the case of Suresh @ Pappu Bhudharmal Kalani Vs. State of Maharashtr a reported in AIR 2001 SC 1375.

¶13Learned senior counsel representing the accused appellants had restricted his submissions to the extent of charge framed under Section 3(2)

(v) of the SC/ST Act. Thus the language of the said provision needs to be considered and the same is reproduced herein below for the sake of ready reference:- “ 3. Punishments for offences of atrocities.

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, — ….

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.”

¶14From a bare perusal of the provision, it is crystal clear that for the above offence to be constituted, there must be an allegation that the accused not being a member of Scheduled Caste or Scheduled Tribe committed an offence under the IPC punishable for a term of 10 years or more against a member of the Scheduled Caste or Scheduled Tribe knowing that such person belongs to such ‘community’.

¶15Going by the material collected during investigation, it is manifest that the incident had the undertones of a political rivalry. At this stage, we may note that though learned counsel for the appellants gave up the challenge to the charge framed against the accused appellants for the offence punishable under Section 307 IPC but the fact remains that when the witness R inku Thakur who alleged that he was shot upon by the accused Vinod Upadhyay, was medically examined, no corresponding gun shot injury was obse rved on his person.

¶16Be that as it may, as per the highest case of prosecution, the only offence under IPC punishable with imprisonment of 10 years or more being the offence under Section 307 IPC has been applied on the basis of the gun shot allegedly fired by the accused Vinod Upadhyay upon Rinku Thakur, which admittedly did not result into any corresponding injury. After perusal of the entire material on record,we have no hesitation in concluding t hat from the admitted case set up by the prosecution, there is no such allegation that the offence under IPC punishable with imprisonment of 10 years or more was committed by an accused of upper caste upon a person belonging to the Scheduled Caste community with the knowledge that such pe rson belonged to the said community.

¶17Hence, there is merit in the contention of lear ned counsel representing the appellants that prima facie ingredi ents of the offence punishable under Section 3(2)(v) of the SC/ST Act are not made out from the admitted allegations of prosecution and to this extent, the charge framed against the accused appellants is groundless.

¶18Resultantly, the impugned orders to the extent of charge framed against the accused appellants for the offence punishable under Sections 3(2)

(v) of the SC/ST Act and the order rejecting the appeal cannot be sustained and are hereby quashed and set aside. However, the trial of the accused for the remaining offences shall continue. The accused appellants already stand released on bonds as indicated in the Order dated 19 th May, 2023 passed by this Court. The bonds so submitted shall enure till conclusion of t he trial. The non-bailable warrants issued against the accused by the trial Court are hereby quashed. As a consequence of quashing of the charge for the offence punishable under the SC/ST Act, and since the remaining charges are for the offences punishable under IPC, the trial of the case shall stand transferred from the Special Court to the Court of Sessions having jurisdi ction to try the case.

¶19The appeal stands allowed as above.

¶20Pending applications, if any, shall stand disposed of. Headnotes prepared by: Appeal allowed. Ankit Gyan SHASHIKANT SHARMA & ORS. v. STATE OF UTTAR

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3663 of 2023. From the Judgment and Order dated 06.04.2023 of the High Court of Judicature at Allahabad in CRLA No.3107 of 2023.

R. Basant, Sr. Adv., Neeraj K. Sharma, Priyanka Sharma, Harendra Singh, Pawan Kumar Sharma, Amit Shrivastava, P. Sharma, Sharath, Advs. for the Appellants. Sharan Dev Singh Thakur, A.A.G., Sanjay Hegde, Sr. Adv., Ms. Swetashwa Agarwal, Sanchit Garga, Ms. Mithu Jain, Kunal Rana, Ms . Sneha Goswami, Ms. Ruchira Goel, Aviral Saxena, Sharanya Sinha, Harsh Pratap Shahi, Mustafa Sajad, Adit Jayeshbhai Shah, Ms. Keerti Jaya, Advs. for the Respondents. 1069 SHASHIKANT SHARMA & ORS. v. STATE OF UTTAR PRADESH & ANR.