Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Separate Conviction And Sentence Under Section 3(2)(5) SC/ST Act Simplicitor Is Illegal.
JUDGEMENT TITLE : Sri Narain Trivedi & Others Vs. State Of U.P. On 15/01/2009 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 6305 OF 2008
CORAM : Hon'ble Shiv Charan (Sharma),J. And Hon'ble Vijay Kumar Verma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Court No. 44


Crl. Appeal No. 6305 Of 2008

Sri Narain Trivedi And Others.............. Appellants

Vs.
State Of U.P. ......................... Opposite Party


Hon'ble Shiv Charan, J.
Hon'ble Vijay Kumar Verma, J.

Shri Saurabh Sinha And Sri Manish Srivastava, Advocates Filed Parcha Pairvi On Behalf Of The Complainant. It May Be Placed On Record.
2.Objections Filed On Behalf Of The State Against The Prayer Of Bail Be Placed On Record.
3.Heard Sri Jagdish Singh Sengar, Learned Counsel For The Appellants, A.G.A. For The State And Sri Vikas Srivastava, Advocate Holding Brief Of Sri Saurabh Sinha, Counsel For The Complainant On The Prayer Of Bail Of Appellant Sri Narain Trivedi, Ashok Kumar @ Khanna And Pramod Kumar @ Nanhkau Convicted By Sri Dilip Singh, The Then Addl. Sessions Judge/Special Judge, S.C./S.T. Act, Fatehpur In Special S.T. No. 9/2003 (State Vs. Sri Narain Trivedi And Others) Under Sections 307/34, 504 I.P.C. And 3(2)(5) Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities) Act, 1989 (in Short, "the SC/ST Act") Act, P.S. Husainpur, District Fatehpur And Perused The Record.
4.Learned Counsel For The Appellants Argued That Learned Sessions Judge Wrongly Convicted And Sentenced The Appellants Separately For The Offence Under Section 307 I.P.C. And Section 3(2)(5) SC/ST Act. Learned Counsel Also Argued That The Learned Sessions Judge Was Also Not Justified In Convicting And Sentencing The Appellants For The Offence Under Section 307/34 I.P.C. He Further Argued That Although Injuries Are Of Fire Arm, But Are On The Thigh, A Non-vital Part Of The Body. He Also Argued That The Doctor Has Not Alleged The Injuries As Grievous. Hence, The Injuries Can Be Called Simple In Nature And Considering The Nature Of The Injuries, These Appellants Are Entitled For Bail. He Also Argued That No Case Can Be Said To Be Made Out Under SC/ST Act, As The Offence Was Not Committed On The Grounds That The Victim Belongs To Scheduled Caste. It Is Further Contended That The Appellants Were On Bail During Trial And They Have Not Misused The Bail.
5.A.G.A. As Well As Counsel For The Complainant Opposed The Prayer For Bail. The Learned Counsel For The Complainant Argued That The Accused Persons Uttered The Word "sweeper (Bhangi)" At The Time Of Committing The Offence And Hence The Sessions Judge Was Justified In Convicting The Appellants Under SC/ST Act Also.
6.We Have Considered The Facts And Circumstances Of The Case. Without Expressing Any Opinion On Merit, It Is A Fit Case Of Bail.
7.Let The Appellants Sri Narain Trivedi, Ashok Kumar @ Khanna And Pramod Kumar @ Nanhkau Be Released On Bail In The Above Case Till Disposal Of The Appeal On Their Furnishing Personal Bond And Two Sureties Each In The Like Amount To The Satisfaction Of The Trial Court Concerned. Realization Of Fine To The Extent Of Fifty Per Cent Shall Remain Stayed Till Disposal Of The Appeal. Remaining Fifty Per Cent Fine Shall Be Deposited In The Trial Court Prior To The Release.
8.It Is Worthwhile To Mention That The Learned Sessions Judge Has Convicted And Sentenced The Appellants To Undergo Imprisonment For Life And To Pay A Fine Of Rs.3000/- Each Under Section 3(2)(5) SC/ST Act. They Have Also Been Convicted Separately Under Section 307/34 I.P.C. And Sentenced To Undergo Imprisonment For Seven Years And To Pay A Fine Of Rs.2000/- Each. This Method Of Convicting And Sentencing The Appellants Is Not In Accordance With Law. Section 3(2)(5) SC/ST Act Does Not Constitute Any Substantive Offence And Hence, Conviction And Sentence Of The Appellants Under Section 3(2)(5) SC/ST Act Simplicitor Is Wholly Illegal. Section 3(2)(5) SC/ST Act Provides As Under:-
3(2) Whoever, Not Being A Member Of A Scheduled Caste Or A Scheduled Tribe.-
(i).......................................
(ii).....................................
(iii)....................................
(iv)....................................
(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 On The Ground 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;
9.As Would Appear From The Language Used By The Legislature In Section 3(2)(5) SC/ST Act, It Is Clear That This Section Does Not Constitute Any Substantive Offence And If Any Person Not Being A Member Of A Scheduled Caste Or A Scheduled Tribe Commits Any Offence Under The Indian Penal Code Punishable With Imprisonment For A Term Of Ten Years Or More Against A Person Or Property On The Ground That Such Person Is A Member Of Scheduled Caste Or Scheduled Tribe Or Such Property Belongs To Such Member, Then Enhanced Punishment Of Life Imprisonment Would Be Awarded In Such Case, Meaning Thereby That Conviction And Sentence Under Section 3(2)(5) SC/ST Act Simplicitor Is Not Permissible And In Cases Where An Offence Under The Indian Penal Code Punishable With Imprisonment For A Term Of Ten Years Or More Is Committed Against A Person Or Property On The Ground That Such Person Is A Member Of A Scheduled Caste Or A Scheduled Tribe Or Such Property Belongs To Such Member, Then In Such Case The Accused Will Be Convicted And Sentenced For The Offence Under Indian Penal Code Read With Section 3(2)(5) SC/ST Act With Imprisonment For Life And Also With Fine. Therefore, In The Present Case, The Appellants Could Not Be Convicted And Sentenced Under Section 3(2)(5) SC/ST Act Simplicitor.
10.Mistake Which Has Been Committed By The Learned Sessions Judge In Present Case In Convicting And Sentencing The Appellants Under Section 3(2)(5) Simplicitor Has Been Noticed By Us In Some Other Cases Also.
The Registrar General Is Directed To Send A Copy Of This Order To Sri Dilip Singh, The Then Addl. Sessions Judge/Special Judge, SC/ST Act, Fatehpur For His Future Guidance.

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