Full Judgment Text
Criminal Appeal @ SLP(Criminal) No. 5323 of 2023
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). OF 2023
(Arising out of SLP(Criminal) No(s). 5323 of 2023)
SHASHIKANT SHARMA & ORS. ….APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH & ANR. ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Leave granted.
2023 INSC 1036
2. The instant appeal has been preferred by the accused
appellants questioning the legality and validity of the Order dated
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6 April, 2023 passed by the learned Single Judge of the High
Court of Judicature at Allahabad rejecting the Criminal Appeal No.
3107/2023 preferred by the accused appellants under Section
14A(1) of the Scheduled Castes and Scheduled Tribes(Prevention
Signature Not Verified
of Atrocities) Act, 1989 (hereinafter being referred to as the ‘SC/ST
Digitally signed by
Nisha Khulbey
Date: 2023.12.01
16:23:46 IST
Reason:
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Act’). The learned appellate Court affirmed the Order dated 14
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Criminal Appeal @ SLP(Criminal) No. 5323 of 2023
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.
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3. It may be mentioned that vide Order dated 19 May 2023,
this Court had directed that the bonds executed by the accused
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appellants in pursuance of the Order dated 2 September, 2022
passed by the High Court shall remain in force and non-bailable
warrants which had been issued at that stage, shall not be
executed until further consideration.
4. Learned 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 appellants to the Order framing charges
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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.
5. Learned 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
prosecution, 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
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Criminal Appeal @ SLP(Criminal) No. 5323 of 2023
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.
6. Without 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 witnesses 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.
7. He submitted that it is the members of the complainant party
who killed Pushpendra from the side of the accused appellants
and, thereafter, in order to create defence, a patently 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
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Criminal Appeal @ SLP(Criminal) No. 5323 of 2023
the extent of the charge framed against the accused appellants for
the offence punishable under Sections 3(2)(v) of the SC/ST Act.
8. Per 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 learned counsel for the 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.
9. The Court was taken through the order passed by the learned
Special Judge with particular reference to the allegation that the
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 recorded 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
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attention towards the witness and hurled caste-based abuses
towards him and threatened him with dire consequences.
10. As 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 supplemented by
written submissions which are virtually reiteration of what was
argued before the Court.
11. We have carefully considered the submissions made by the
learned counsel at the Bar and have perused the material available
on record.
12. At 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 offence 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
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by the State counsel in the written submissions that at the stage
of framing of charges, the Court is not required to undertake a
meticulous evaluation of evidence and even grave suspicion is
sufficient 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
Maharashtra reported in AIR 2001 SC 1375.
13. Learned 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
hereinbelow 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
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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.”
14. From 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’.
15. Going 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 Rinku Thakur who
alleged that he was shot upon by the accused Vinod Upadhyay,
was medically examined, no corresponding gun shot injury was
observed on his person.
16. Be 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
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Criminal Appeal @ SLP(Criminal) No. 5323 of 2023
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 that 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 person belonged to the
said community.
17. Hence, there is merit in the contention of learned counsel
representing the appellants that prima facie ingredients 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.
18. Resultantly, 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
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continue. The accused appellants already stand released on bonds
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as indicated in the Order dated 19 May, 2023 passed by this
Court. The bonds so submitted shall enure till conclusion of the
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 jurisdiction to try the case.
19. The appeal stands allowed as above.
20. Pending applications, if any, shall stand disposed of.
………………………………………………J.
(PAMIDIGHANTAM SRI NARASIMHA)
………………………………………………J.
(SANDEEP MEHTA)
NEW DELHI;
December 01, 2023.
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