Dismissed

Dharmendra Sharma and 3 Others v. State of U.P. and Another

Allahabad HC8 Jul 2024A482/21265/2024

Case brief

AI extract

What is this about?

Applicants accused under Sections 302, 120-B IPC and Section 3(2)(v) SC/ST Act challenged framing of charges via a Section 482 application limited to the SC/ST charge. The court held knowledge of caste was prima facie shown by investigation material and motive, found the cited precedents inapplicable, and dismissed the application while cautioning against bypassing the statutory appeal under Secti

What the court decided

AI extract

Dharmendra Sharma and 3 Others vs State of U.P. and Another — Caste Atrocities | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:189289

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Court No. - 81

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Case :- APPLICATION U/S 482 No. - 21265 of 2024

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Applicant :- Dharmendra Sharma And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sushil Shukla Counsel for Opposite Party :- Amit Daga, Bindu Kumari,Brijesh Kumar,G.A.,Prem Prakash Yadav

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Hon'ble Manoj Bajaj,J.

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Applicants being accused in Case Crime No. 276 of 2023, under Sections 302, 120-B IPC and Section 3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station Rabupura, District Gautam Budh Nagar, which is subject matter of trial in Sessions Trial No. 1629 of 2023, are aggrieved against the impugned order dated 18.4.2024 passed by Special Judge (SC/ST Act), District Gautam Budh Nagar, whereby charges against them have been framed.

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Briefly, the facts of the case leading to the application are that on the basis of a complaint by opposite party no. 2 namely Lakhpat Singh, an FIR was registered with the allegations that on 21.10.2023 at around 07:00 pm, when his son namely Lalit Kumar was returning back from the Jungle, suddenly few unknown persons attacked him with sharp edged weapons, and as a result of the injuries suffered by him, he died. The complainant requested for taking legal action against the culprits.

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On this information, a criminal case for alleged commission of offence punishable under Section 302 IPC was registered at Police Station Rabupura, District Gautam Budh Nagar.

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After registration of the case, the investigation was conducted and during investigation, offence punishable under Section 120-B IPC and Section 3(2) (v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocities Act, 1989") were added. The investigating officer recorded the statements of the witnesses namely Banti, Malkhan,Vijay Pal, Narendra Sharma, Ajai Kumar, Aman and Bhikki under Section 161 Cr.P.C. and also collected documentary evidences i.e. the postmortem report, FSL report etc. and submitted the final report under Section 173(2) Cr.P.C. before the court of competent jurisdiction. Through this report, four accused persons namely Dharmendra Sharma, Rahul, Manoj Sharma and Ankit (applicants herein) have been sent to face trial.

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The trial court, upon considering the final report under Section 173(2) Cr.P.C. proceeded to frame charges against the accused persons for alleged commission of offences punishable under Sections 302, 120-B IPC and Section 3(2)(v) "Atrocities Act, 1989" vide impugned order dated 18.4.2024. Hence, this appeal.

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At the very outset, learned counsel for the

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applicants-accused has stated that he gives up the challenge to the impugned order dated 18.4.2024 only to the extent of framing charges against applicants for alleged commission of offences punishable under Indian Penal Code, and craves indulgence of this Court only to impugne the charge framed against the applicants for alleged commission of offence punishable under "Atrocities Act, 1989".

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Learned counsel has argued that the complainant has nowhere mentioned in the FIR that he and his son Lalit Kumar (deceased) belonged to the scheduled caste or scheduled tribe community, who only disclosed about assault on his son by unknown persons and even the particulars of the accusedapplicants are not contained in his complaint. Learned counsel submits that during investigation, on the basis of the statements of other witnesses recorded under Section 161 Cr.P.C., the applicants were implicated in this case as accused, and it is not a case where any derogatory utterances were used by the accused, therefore, even if, the entire case of the prosecution is taken to be true on its face value, no offence punishable under Section 3(2)(v) "Atrocities Act, 1989" would be made out. Further, learned counsel has drawn the attention of the Court to the relevant penal provision contained in the "Atrocities Act, 1989" to point out that the crucial ingredient of "knowledge" to accused, that the victim

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belonged to the scheduled caste/scheduled tribe category is missing, therefore, no case would be made out for framing of charge against the applicants under Section 3(2)(v) "Atrocities Act, 1989".

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Learned counsel has further drawn the attention of the Court to the impugned order passed by the Special Court and argued that the trial court has not carefully analyzed the final report under Section 173(2) Cr.P.C. and has proceeded to frame the charge against the applicants in a mechanical manner. In support of his arguments, learned counsel for the applicants has relied upon the decisions of the Hon'ble Supreme Court in Hitesh Verma vs. State of Uttarakhand and another reported in (2020) 10 SCC 710; Khuman Singh vs. State of Madhya Pradesh reported in (2020) 18 SCC 763 ; Shashikant Sharma and others vs. State of Uttar Pradesh and another reported in 2023 SCC OnLine SC 1599 and B. Venkateswaran and others vs. P. Bakthavatchalam reported in (2023) 11 SCC 182 .

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Lastly, Mr. Sushil Shukla, learned counsel for the applicants prays that the impugned order dated 18th April, 2024 be set aside only to the extent of framing charges against the applicants under the offence punishable under "Atrocities Act, 1989".

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The prayer is opposed by learned State Counsel as

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well as by Mr. Amit Daga, learned counsel for the complainant-opposite party no. 2, who have argued that the trial court has carefully examined the record of the case and found that the evidence regarding commission of offence punishable under Section 3(2) (v) "Atrocities Act, 1989" is also collected, as the caste certificate of the victim is also part of the final report submitted under Section 173(2) Cr.P.C. According to the learned counsel for the opposite party no. 2, for the purpose of framing of charges, the trial court is not required to delve deep into the prosecution case, as at this stage, only prima facie commission of alleged offence is to be seen, and according to them, the impugned order dated 18th April, 2024 is based upon the correct appreciation of material on record, therefore, the appeal be dismissed.

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Learned counsel for the parties have been heard and with their assistance, the case file has been perused carefully.

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Framing of charges against the accused persons marks the commencement of criminal trial relating to the alleged offences, and at this crucial stage, it is essential for the trial court to carefully examine the record of the case relied upon by prosecution/complainant and also to provide an opportunity of hearing to the accused. At this stage, the trial court is required to assess the prosecution case to form an opinion, if, the material on record

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prima facie suggests commission of alleged offences by accused. In case, the material is not enough and does not even prima facie indicate commission of alleged offences, the trial court would be well within its jurisdiction to discharge the accused, but if, a prima facie case is made out, it shall formally frame the charges against the accused and shall proceed with the trial.

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By now, it is well settled law that at this stage, the trial court is not required to hold a mini trial in order to record satisfaction for proceeding with the trial, and even suspicion of involvement of accused in alleged commission of crime is sufficient to proceed with the trial.

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In this regard, reference can be made to Central Bureau of Investigation vs. K. Narayaa Rao reported in 2012 (2) RCR (Criminal) 601 , wherein the Hon'ble Supreme Court while considering the Sections 227 and 228 Code of Criminal Procedure relating to the Sessions Trial made the following observations:-

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14. .........xxxxxxx..............

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21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

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(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

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(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

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(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

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(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

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(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

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(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

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(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

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Now, while reverting to the facts of the case in hand, this Court finds that as far as the framing of charges against the applicants through the impugned order dated 18.4.2024 relating to the offences punishable under Sections 302, 120-B IPC, the same has not been challenged and the accused have no grievance regarding framing of charges for these offences, who have challenged the impugned order only to the extent, whereby the charge against them for an offence under "Atrocities Act, 1989" has been framed.

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Here, it would be relevant to have a glance of Section 3(2)(v) "Atrocities Act, 1989":-

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" 3. Punishments for offences atrocities. —

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(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—

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(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 1[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; "

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A reading of the above section makes it clear that if, a person not belonging to the Scheduled Caste or Scheduled Tribe commits any offence punishable under Indian Penal Code, which carries imprisonment for a term of ten years or more, against a person or property, who belongs to the Scheduled Caste or Scheduled Tribe, the above offence would be constituted. Concededly, the applicants have been charged for an offence punishable under Section 302 Indian Penal Code, which carries the punishment of more than ten years, therefore, in the given facts, it is to be tested prima facie , if, the accused had knowledge that the victim/complainant belonged to the Scheduled Caste or Scheduled Tribe.

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During the course of hearing, it is not disputed by learned counsel for the applicants that the prosecution case is based upon circumstantial

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evidence and in such cases motive also acquires significance.

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Mr. Shushil Shukla, learned counsel for the applicants fairly stated that the motive in the case has been attributed to applicant Manoj Sharma, who was carrying a grudge against the deceased, as he had illicit relations with the wife of the said accused. Thus, prima facie, the record of the case, i.e. the final report under Section 173(2) Cr.P.C. indicates that the accused had knowledge about the person involved in illicit relations with the wife of one of the accused persons, therefore, in this background, it cannot be said that no offence punishable under Section 3(2)(v) "Atrocities Act, 1989" would be made out, even if, the entire prosecution case is taken to be true on its face value. Merely, because the FIR contains the information given to the police about homicidal death of complainant's son without referring to the caste or tribe, it cannot be said that the said information alone will be relevant for prosecution of the accused. The investigation in crime is a field purely occupied by police and during investigation, the documentary material relating to the caste of the deceased has been collected by investigating officer, therefore, in the considered opinion of this court, prima facie case relating to the alleged commission of offence punishable under Section 3(2)(v) "Atrocities Act, 1989" is also made out.

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The decisions relied upon by the learned counsel for

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the applicants are not applicable in the facts and circumstances of the case, as in the case of Shashikant Sharma (supra), the Hon'ble Supreme Court analyzed the prosecution case in the context of offence committed under Section 307 IPC to observe that in the absence of any injury to anyone, the punishment for the said offence may not go beyond a period of ten years, therefore, the order framing charge under Section 3(2)(v) "Atrocities Act, 1989" only was set aside. Similarly, in B. Venkateswaran's case (supra) , the Hon'ble Supreme Court quashed the criminal proceedings against the accused therein with the observation that the complainant has converted a civil dispute into criminal case and there is no allegation that the complainant is obstructed or interfered with enjoyment of his right on his property. It proceeded to reverse the decision of High Court, which had refused to exercise the inherent powers under Section 482 Cr.P.C. to quash the criminal proceedings Further, the decision in Hitesh Verma's case (supra) is also not applicable, as in the said case also, the dispute between the parties related to the possession of land, which was already a subject matter before the civil court, and the allegations inviting the offence punishable under Section 3(1)(r) SC/ST Act were founded upon the allegations of derogatory utterances made in public view.

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A perusal of the impugned order would show that the

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trial court has carefully examined the material on record while passing the impugned order and framing charges against the applicants and the said order does not suffer from any illegality. Thus, no interference is called for by this court in exercise of inherent powers under Section 482 Code of Criminal Procedure.

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Resultantly, without meaning any expression of opinion on the merits of the case, the application is dismissed.

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Before parting with the above decision, this Court deems it appropriate to observe that the impugned order framing charges against the applicants is appealable under Section 14A "Atrocities Act, 1989", and the applicants have not given any satisfactory explanation to justify the filing of the application under Section 482 Cr.P.C., by avoiding the statutory remedy of appeal. However, as the application already stood entertained by the co-ordinate Bench, therefore, this Court has decided the case on its merit.

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Thus, this order be not treated as a precedent for invoking inherent powers under Section 482 Cr.P.C., without availing the statutory remedy of appeal or revision to challenge an order passed by the trial court at the stage of framing charges.

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Order Date :- 3.12.2024 Brijesh

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Digitally signed by :- BRIJESH KUMAR High Court of Judicature at Allahabad

Dharmendra Sharma and 3 Others v. State of U.P. and Another

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Dharmendra Sharma and 3 Others v. State of U.P. and Another

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