SHASHIKANT SHARMA & ORS.versusSTATE OF UTTAR PRADESH & ANR.

                [2023] 15 S.C.R. 1067 : 2023 INSC 1036



                            CASE DETAILS

                  SHASHIKANT SHARMA & ORS.
                                     v.
                STATE OF UTTAR PRADESH & ANR.
                   (Criminal Appeal No. 3663 of 2023)
                         DECEMBER 01, 2023
           [PAMIDIGHANTAM SRI NARASIMHA AND
                   SANDEEP MEHTA, JJ.]
                             HEADNOTES
     Issue for consideration: Whether the prima facie ingredients of the
offence punishable u/s. 3(2)(v) of the SC/ST Act were made out against the
appellants.
      Penal Code, 1860 – ss.147, 148, 149, 307, 323, 504 – Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 –
s.3(2)(v) – 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, challenge to the
order framing charges was given up – However, the ingredients of s.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.
      Held: As per the highest case of prosecution, the accused ‘VU’ fired
a gun shot at ‘R’ 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 ‘VK’ being a member of SC community was subjected
to casteist abuses by the accused appellants after the gunshot was fired
at ‘R’ – However, the medicolegal report opined that a boil/abscess was
noticed on R’s thigh and no evidence of gun shot was found – From a
bare perusal of the s.3(2)(v) of the SC/ST Act, it is crystal clear that for
the 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

                                   1067
1068         SUPREME COURT REPORTS                         [2023] 15 S.C.R.


a member of the Scheduled Caste or Scheduled Tribe knowing that such
person belongs to such ‘community’ – Going by the material collected
during investigation, it is manifest that the incident had the undertones of a
political rivalry – 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 u/s. 307 IPC has been applied on the basis of the
gun shot allegedly fired by the accused ‘VU’ upon ‘R’, which admittedly
did not result into any corresponding injury – After perusal of the entire
material on record, there is 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. [Paras 14, 15, 16, 17]
        LIST OF CITATIONS AND OTHER REFERENCES
     Suresh @ Pappu Bhudharmal Kalani v. State of Maharashtra, AIR
(2001) SC 1375 – referred to.
        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES
     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.
       Appearances:
      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.
    SHASHIKANT SHARMA & ORS. v. STATE OF UTTAR                           1069
                 PRADESH & ANR.


       JUDGMENT / ORDER OF THE SUPREME COURT

                               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 of Atrocities) Act, 1989(hereinafter being referred to as
the ‘SC/ST Act’). The learned appellate Court affirmed the Order dated 14th
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 2 ndSeptember, 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 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.
1070         SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      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
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 thatit is the members of the complainant party who
killed Pushpendra from the side of the accused appellants and, thereafter,
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.
     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
    SHASHIKANT SHARMA & ORS. v. STATE OF UTTAR                         1071
        PRADESH & ANR. [SANDEEP MEHTA, J.]

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 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 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
1072          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


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 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.”
     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.
    SHASHIKANT SHARMA & ORS. v. STATE OF UTTAR                             1073
        PRADESH & ANR. [SANDEEP MEHTA, J.]

      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 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 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.


Headnotes prepared by:                                             Appeal allowed.
Ankit Gyan