Shashikant Sharma vs The State Of Uttar Pradesh

2023 INSC 1036 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)

JUDGMENT

Mehta, J.

1. Leave granted.

2. The instant appeal has been preferred by the accused

appellants questioning the legality and validity of the Order dated

6th 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:

Act’). The learned appellate Court affirmed the Order dated 14th

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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.

3. It may be mentioned that vide Order dated 19th May 2023,

this Court had directed that the bonds executed by the accused

appellants in pursuance of the Order dated 2nd 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

2 Criminal Appeal @ SLP(Criminal) No. 5323 of 2023

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

3 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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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 6 Criminal Appeal @ SLP(Criminal) No. 5323 of 2023

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 7 Criminal Appeal @ SLP(Criminal) No. 5323 of 2023

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 8 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

9 Criminal Appeal @ SLP(Criminal) No. 5323 of 2023

continue. The accused appellants already stand released on bonds

as indicated in the Order dated 19th 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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