Partly allowed

Brijesh @ Pappu Kushwaha and Another v. State of U.P. and Another

Allahabad HC20 Sept 2022A482/15051/2022

Case brief

AI extract

What is this about?

The High Court rejected an application under Section 482 Cr.P.C. seeking quashing of a charge sheet under multiple IPC and SC/ST Act sections. The court held that prima facie evidence existed despite lack of external injuries. It directed the trial court to decide bail applications expeditiously.

What did the court decide?

Application rejected; direction to trial court to decide bail applications expeditiously in accordance with law.

Brijesh @ Pappu Kushwaha and Another Vs… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 84

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Case :- APPLICATION U/S 482 No. - 15051 of 2022

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Applicant :- Brijesh @ Pappu Kushwaha And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Monika Pal,Yash Pratap Singh Counsel for Opposite Party :- G.A.,Vinay Bhushan Upadhyay

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Yash Pratap Singh, learned counsel for applicants and Shri Chandan Agarwal, learned A.G.A. Perused the record.

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By means of this application, applicants have prayed for quashing the impugned charge sheet dated 10.12.2020, arising out of Case Crime No.452 of 2020, under Sections 323, 504, 506, 354 (kha), 452, 427, 448 I.P.C. and 3 (2) (va) of SC/ST Act, Police Station-Bidhanu, district-Kanpur Nagar on which the learned Magistrate has taken cognizance on 8.4.2021.

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Learned counsel for applicants has vehemently argued that on the basis of F.I.R. and statement of the victim recorded during investigation, no case is made out against the applicants under Sections 323, 504, 506, 354 (kha), 452, 427, 448 I.P.C. and 3 (2) (va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 hereinafter called the "Act, 1989".

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Learned counsel for applicants submits that according to contents of F.I.R. which was lodged by one of the alleged injured person that applicants and two other accused persons entered inside their house wherein not only the first informant but her sister and her mother were also assaulted, their clothes were torn and further they also threw out their belongings and lastly they abused with caste remarks.

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Learned counsel for applicants further submits that in the F.I.R. and statement of injured persons states that they have been brutally assaulted, but the medical examination report of said

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persons shows that there was no external injury. He has also vehemently argued that Section 3 (2) (va) of the Act could be involved only when act was done 'knowingly' that victim belongs to SC/ST, but the said ingredient 'knowingly' is absolutely absent in the F.I.R. as well as in the statement of victims recorded during investigation.

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Learned counsel for applicants has heavily placed reliance upon a judgment of Supreme Court in Patan Jamal Vali Vs. State of Andhra Pradesh, 2021 AIR (SC) 2190 , that sine qua non for application of Section 3 (2) (v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. Counsel for applicants has also placed reliance upon a judgment of Supreme Court in Hitesh Verma Vs. The State of Uttarakhand & Anr, (2020) 10 SCC, 710, wherein the case of Khuman Singh Vs. State of Madhya Pradesh, 2019 SCC OnLine SC 1104 , was considered and held that in a case for applicability of Section 3 (2) (v) of the Act, the fact that the victim belonged to Scheduled Caste would not be enough to inflict enhanced punishment. The offence must have been committed agaisnt the person on the ground that such person is a member of SC or ST.

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Per contra, learned A.G.A. has opposed the submission of learned counsel for the applicants and supported the chargesheet and submitted that since there was prima-facie evidence that applicants have committed aforesaid offence, it may not be interfered under inherent powers as it will cause sudden death of criminal proceedings.

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Act, of 1989 was enacted with the object and reason that despite various measures to improve the socio-economic condition of the Scheduled Caste and the Scheduled Tribes, they remained vulnerable. They are denied number of civil rights. They are

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subjected to various offences, indignities, humiliations and harassment. They have in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.

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Section 3 (2) (va) of the Act, 1989 was inserted by Amendment Act 1 of 2016 which is an enabling provision and provides that, whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-

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" (va) commits any offence specified in the Schedule, 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 such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine."

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Above provision is different from the provision as provided under Section 3 (2) (v) of the Act, 1989 which provides for enhanced punishment.

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In Patan Jamal Vali (supra) Supreme Court was considering the findings arrived after the trial as well as interpretation of word 'knowingly' as used in Section 3 (2) (v) which provides enhanced punishment.

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Similarly, in Hitesh Verma (supra) Supreme Court was considering as to whether an offence is made out under Sections 3 (1) (r) and 3 (1) (s) of the Act, 1989 and interpretation of word 'any place within public view.'

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All the above judgments have considered the provisions of Section 3 (2) (v) of the Act, 1989, though word 'knowingly' has been interpreted in Patan Jamal Vali (supra), however it was a case after trial was concluded.

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Inherent power under Section 482 Cr.P.C. is to be exercised

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sparingly and in rare cases, where on the basis of evidence collected during investigation, no prima-facie case is made out and in no circumstances mini trial be conducted.

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Complainant in the F.I.R. as well as in the statement recorded during investigation has consistently stated that applicants along with two other co-accused persons entered inside their house, assaulted the female members, their clothes were torn and they also threw out their belongings and abused with caste remarks, therefore, on the basis of such evidence, Court cannot come to the conclusion at this stage that the word 'knowingly' is absolutely absent. The parties belong to one village and they know each other very well.

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So far as other Section 354-A of I.P.C. is concerned the same is also prima-facie made out as it is a consistent stand of the victims that applicants and two other persons not only assaulted them, but they were sexually harrassed also.

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Ingredients of Section 452 I.P.C. is also prima-facie made out against the applicants as they have committed tresspass. Similarly, offence under Sections 427 and 448 I.P.C. are also prima-facie made out against the applicants as they have committed mischief by throwing victims' belonging and committed criminal trespass also. The other argument of learned counsel for applicants is that there was no external injury on the injured.

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Section 323 I.P.C. provides for punishment for voluntarily causing hurt and voluntarily causing hurt is defined under Section 321 I.P.C. which includes an act done with the knowledge that it is likely to cause hurt to any person and further Section 319 I.P.C. defines 'hurt' which includes bodily pain, deceased or infirmity, therefore, even in absence of any visible injury, offence under Section 323 I.P.C. could be made

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out on the basis of statements of victims specially when medial examination was conducted after three weeks.

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In Ramveer Upadhyay Vs. State of U.P. & Anr, 2022 SCC OnLine SC 484 , the Supreme Court has held that interference under inherent power of Section 482 Cr.P.C. could be exercised in exceptional circumstances and only when complaint did not disclose any offence or was patently frivolous, vexatious or oppressive, but facts of the present case do not fall under any of the said category.

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At this stage, learned counsel for the applicants submits that all the offence are punishable by sentence of less then seven years and prayed that applicants are desirous to appear before the trial court within a period of three weeks, file bail applications and in case the bail applications are filed, the same may be decided expeditiously in view of the judgment of Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation and another, (2021) 10 SCC 773.

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In view of the above, prayers made in this application are rejected.

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Application is disposed of with the direction that in the event applicants honour their undertaking and file appropriate bail applications, Trial Court will undertake all endeavour to decide the same expeditiously in accordance with law considering the judgment passed by Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation and another, (2021) 10 SCC 773 .

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Order Date:- 20.9.2022

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(Serial No.25 out of 400 fresh cases)

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Digitally signed by SANDEEP BHATTACHARYA Date: 2022.09.21 17:53:17 IST Reason: Location: High Court of Judicature at Allahabad

Brijesh @ Pappu Kushwaha and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Brijesh @ Pappu Kushwaha and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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