The learned appellate Court affirmed the Order dated 14 2 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.
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. 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 4 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.
Per contra, learned AAG representing the State of Uttar Pradesh and learned counsel representing the complainant respondent no.
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.
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. 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.
(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 8 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.”
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 9 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.
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.
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 shallcontinue. 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 ensure 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. The appeal stands allowed as above.
Case Title: SHASHIKANT SHARMA Vs. THE STATE OF UTTAR PRADESH
Case Number: Crl.A. No.-003663-003663 / 2023
