LAW CENTRE-II, UNIVERSITY OF DELHI

MEMORIAL ON BEHALF OF THE APPELLANT

IN THE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

UNDER ORDER XII RULE 2(1), SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION (CRL.) NO.: -………… OF 2023

[UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950]

IN THE MATTER OF:

STATE OF UTTAR PRADESH AND MOOLCHAND ……………. APPELLANT

VERSUS

BALDEV ……………. RESPONDENT

(UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIA UNDER ARTICLE 136 OF THE
CONSTITUTION OF INDIA, 1950)

ADVOCATE FOR THE APPELLANT

SUBMITTED TO: Dr. RAMKRISHNA DAS

SUBMITTED BY: OJASWI SHARMA
ENROLLMENT NO.: 16RAMCBHEC000020
CLASS ROLL NO.: 213105
EXAM ROLL NO.: 21311806541
SEMESTER: V
SECTION: I
 TABLE OF CONTENTS

1. TABLE OF CONTENTS. 1

2.INDEX OF AUTHORITIES. 2

LIST OF ABBREVIATIONS. 2

2.2.LIST OF FACTS & STATUTES REFERRED. 3

2.3. LIST OF JUDICIAL PRECEDENTS. 3

2.4. LIST OF BOOKS REFERRED. 3

2.5. LIST OF ARTICLES REFERRED ONLINE. 3

2.6. LIST OF ONLINE SOURCES. 4

3. STATEMENT OF JURISDICTION. 5

4. STATEMENT OF FACTS. 6

5. STATEMENT OF ISSUES. 7

6. SUMMARY OF ARGUMENTS. 8

7. ARGUMENTS ADVANCED. 9

8. PRAYER. 14

1
 LIST OF ABBREVIATIONS
S.NO. ABBREVIATIONS FULL FORM

1. SC Supreme court of India

2. HC High Court

3. Art. Article

4. Hon’ble Honorable

5. & And

6. U/S Under Section

7. CrPC Code of Criminal Procedure

8. Sec. Section

9. v. Versus

10. AIR All India Reporter

11. SC/ST(POA) Schedule Caste & Schedule Tribe

(Prevention of Atrocity) Act

12. SC & ST Schedule Caste & Schedule Tribe

13. SCC Supreme Court Cases

14. SCR Supreme Court Reporter

15. CRL Criminal

16. UOI Union of India

17. Supp. Supplementary

18. Cr. LJ Criminal Law Journal

19. Adm. Administration

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 INDEX OF AUTHORITIES

❖ LIST OF STATUTES REFERRED

1. The Constitution of India, 1950

2. The Code of Criminal Procedure, 1973

3. The Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989

❖ LIST OF JUDICIAL PRECEDENT

1. Medchl chemicals and pharma V. Biological E. Ltd., 2000

2. Manendra Prasad Tiwari vs Amit Kumar Tiwar, 2022
3. Amit kapoor v ramesh chandra, 2012
4. Dinesh Dutt Joshi v. State of Rajasthan & Anr. 2001
5. Janata Dal v. H.S. Chowdhary & Ors., 1992
6. Hitesh Verma v The state of Uttarakhand, 2020
7. Swaran Singh & Ors vs State Tr.Standing Council & Anr, 2008
8. B. Sudhakar Reddy vs The S.H.O, 2012

❖ LIST OF BOOKS OR JOURNALS REFERRED

1.International Journal of Law, Volume 4, Issue-I Jan,2018

❖ LIST OF ARTICLES REFERRED ONLINE

1. https://thelawmatics.in/article-136-special-leave-petition-an-brief-
analysis/#google_vignette

2. https://blog.ipleaders.in/article-136-of-the-indian-constitution/

3. https://lawyersgyan.com/blog/nature-and-scope-of-article-136-of-the-constitution/

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4. https://xpertslegal.com/blog/extraordinary-jurisdiction-of-the-supreme-court-under-article-
136/#:~:text=%E2%80%9C136.,in%20the%20territory%20of%20India.

❖ LIST OF ONLINE SOURCES OR WEBSITES

1) Blog ipleaders
2) Indian kanoon
3) Researchgate
4) Manupatra online resources
5) SCC Online
6) Indian Case Law (ICL)
7) The lawmatics

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 STATEMENT OF JURISDICTION

1. The Appellant respectfully approached to the jurisdiction of this Hon’ble Supreme

Court of India under Article 136 of the Constitution of India, 1950 against the order
passed by Hon’ble High Court of Allahabad of quashing of charges framed by the
Hon’ble Trial Court under Section 3(1)(r) and 3(1)(s) of SC & ST, Prevention of
Atrocities Act, 1989. The matter has been listed for hearing. Article 136 of the
Constitution of India read here as under:

Article 136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

The memorandum for Appellants in the matter of State of Uttar Pradesh and Mool Chand V.
Baldev sets forth the facts, contentions and arguments present in this case.

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 STATEMENT OF FACTS

BACKGROUND:

1. Mool Chand (hereinafter referred to as the appellant) and Baldev (hereinafter referred
to as the respondent) were the residents of Rajpura town. Appellant who belonged to
the SC community was elected as a ward member of Ward No. 9(reserved for SC),
which was an elected body of Municipality and was headed by a chairperson. The
Respondent was the Chairperson and belonged to the General Category.
2. On the day of 4th December, 2019, a meeting was organised by the respondent at 11:00
AM in his chamber regarding cleanliness in Ward no. 9, and a message was sent to the
appellant through WhatsApp regarding the same. Appellant was occupied with work
and didn’t check the message. When he read the message at 11:30 AM and got to know
about the meeting, he immediately called the respondent informing him that he will
arrive shortly.
COMMISSION OF OFFENCE:

1. On receiving a call from the appellant, the respondent started shouting on him for
getting late. He made casteist remarks and humiliated him, when a clerk was sitting in
the chamber. Despite all the insult and humiliation, the appellant went to the
municipality to attend the meeting. When the appellant entered the Chamber of
respondent, he got angry and abused him again in the name of his caste. He shouted at
him saying “Get lost from my office, otherwise I will make you clean the streets”
2. As the respondent was not listening and just shouting, the appellant came out of the
chamber and rushed to the police station to register an FIR against the respondent.

JUDICIAL PROCEEDINGS:
Findings of the Hon’ble Trial Court:
1. At the initial stage of the case, a prima facie case has been made out against the
respondent.
2. On 4th February, 2020 the Trial Court framed charges under section 3(1)(r) and section
3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989.
Findings of the Hon’ble High Court:

1. The Hon’ble High Court said that the Act is a penal statute which must be strictly
construed and quashed the order of framing of charges on 6th April, 2020.
2. The Hon’ble High Court also refused to provide the certificate to appeal before the
Hon’ble Supreme Court under article 134A of the Constitution of India.
Special leave before the Hon’ble Supreme Court:
1. The appellant has now preferred an appeal.

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 STATEMENT OF ISSUES

The following issues have arisen for determination before the Hon’ble Supreme Court of
India in the instant matter:

ISSUE 1:

Whether the Special Leave Petition brought before this court is maintainable or not?

ISSUE 2:

Whether the misbehaviour and insult over the telephonic conversation witnessed by a third
person i.e., the clerk attract an offence under Section 3(1)(r) and section 3(1)(s) of Scheduled
Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989?

ISSUE 3:

Whether the Hon’ble High Court was right in quashing the framing of Charges by the Hon’ble
Trial Court?

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 SUMMARY OF ARGUMENTS

ISSUE 1: Whether the Special Leave Petition brought before this court is maintainable
or not?
2. Article 136 grants the Supreme Court the discretion to hear cases "in any cause or
matter," with no restrictions other than those imposed by the court's own discretion. If
the High Court acted "perversely" or in an improper manner in reaching its findings,
the SC has the authority to intervene even with the factual conclusions. If the appeal
concerns a significant legal question, a matter of public concern, or a situation in
which a person's rights have been violated, the SC may grant it under Article 136.
3. It is humbly submitted this before the Hon’ble Supreme Court that grave injustice has
been done and the appeal is maintainable.

ISSUE 2: Whether the misbehaviour and insult over the telephonic conversation
witnessed by a third person i.e., the clerk attract an offence under Section 3(1)(r) and
section 3(1)(s) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989?

1. Under the SC & ST (prevention of atrocities) Act, 1989, insults made over the phone
in front of a third party are offences as stated in Sections 3(1)(r) and 3(1)(s). This is
humbly submitted to the Hon'ble court. In order for an offense to be classified under
the aforementioned section, two requirements must be met: (1) the victim of the insult
must be an intentional member of the SC/ST community, and (2) the insult must be
made in a public setting. The respondent was aware that the appellant in this case is a
member of the SC community.

ISSUE 3: Whether the Hon’ble High Court was right in quashing the framing of Charges
by the Hon’ble Trial Court?
1. It is respectfully submitted that only a prima facie case needs to be seen at the stage of
discharge or framing of charge under sections 227 & 228 of the CrPC; whether the
case is proven beyond a reasonable doubt or not is to be seen at this stage and that is
the matter of trial. Strict standards of proof are not necessary when assessing the
evidence that presents a strong enough case against the accused. There is nothing
more that needs to be investigated at this point other than a trial; the purpose is only to
determine whether the presumption reasonably links the accused with the trial.
2. So, in the present case, all the ingredients for framing of charge are made out and
hence HC erred in quashing the order of framing of charges.

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 ARGUMENTS ADVANCED

ISSUE 3: WHETHER THE HIGH COURT WAS RIGHT IN QUASHING THE

FRAMING OF CHARGES?

Argument 1: Was the Hon’ble High Court right in quashing of charges under section
482 of Cr.PC

1)It is respectfully submitted that only a prima facie case needs to be seen at the stage of
discharge or framing of charge under sections 227 & 228 of the CrPC; whether the case is
proven beyond a reasonable doubt or not is to be seen at this stage and that is the matter of trial.
Strict standards of proof are not necessary when assessing the evidence that presents a strong
enough case against the accused. There is nothing more that needs to be investigated at this
point other than a trial; the purpose is only to determine whether the presumption reasonably
links the accused with the trial.
In the case of Medchl chemicals and pharma V. Biological E. Ltd. supreme court observed
that
“it being a settled principle of law that to exercise powers under Section 482 of the Code,
the complaint in its entirety shall have to be examined on the basis of the allegation made
in the complaint and the High Court at that stage has no authority or jurisdiction to go into
the matter or examine its correctness. Whatever appears on the face of the complaint shall
be taken into consideration without any critical examination of the same”
Thus, the Hon’ble high court has erred in its judgement as in this case as it went into the
judicial examination of the facts. Which is a power it has under 482 of the code and art 226
of the constitution.
But it is pertinent to mention that these powers should be used in the interest of furthering
justice and should be used under exceptional circumstances, sparingly and in the rarest of
the rare cases. This can also be seen by the judgements of the Hon'ble Supreme court in
Manendra Prasad Tiwari vs Amit Kumar Tiwari,
“Though there are no limits of the powers of the Court under Section 482 of the Code but
the more the power, the more due care and caution is to be exercised in invoking these
powers. The power of quashing criminal proceedings, particularly, the charge framed in
terms of Section 228 of the Code should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.”

“The Court should apply the test as to whether the uncontroverted allegations as made
from the record of the case and the documents submitted therewith prima facie establish
the offence or not. If the allegations are so patently absurd and inherently improbable that
no prudent person can ever reach such a conclusion and where the basic ingredients of a
criminal offence are not satisfied then the Court may interfere.”

9
2)The Hon’ble Supreme Court reiterated its position on the use of powers conferred by
section 482 of the Cr.PC,that the High court should use this power in the rarest of the rare
cases and in exceptional circumstances.
In Dinesh Dutt Joshi v. State of Rajasthan & Anr. , “The Court held that Section 482
does not confer any power but only declares that the High Court possesses inherent powers
for the purposes specified in the Section. As lacunae are sometimes found in procedural
law, the Section has been embodied to cover such lacunae wherever they are discovered.
The use of extraordinary powers conferred upon the High Court under this section are,
however, required to be reserved as far as possible for extraordinary cases.”

In Janata Dal v. H.S. Chowdhary & Ors. “The court observed that, The powers possessed
by the High Court under Section 482 of the Code are very wide and the very plenitude of
the powers requires a great caution in its exercise. The High Court, as the highest court
exercising criminal jurisdiction in a State, has inherent powers to make any order for the
purposes of securing the ends of justice. Being an extraordinary power, it will, however,
not be pressed in aid except for remedying a flagrant abuse by a subordinate court of its
powers.”

3)The court also enumerated the following guidelines for the High Courts to keep in mind
when using their powers of 482 in the case of Amit kapoor v. Ramesh Chandra

“1) Though there are no limits of the powers of the Court under Section 482 of the Code
but the more the power, the more due care and caution is to be exercised in invoking these
powers. The power of quashing criminal proceedings, particularly, the charge framed in
terms of Section 228 of the Code should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.

2) The Court should apply the test as to whether the uncontroverted allegations as made
from the record of the case and the documents submitted therewith prima facie establish
the offence or not. If the allegations are so patently absurd and inherently improbable that
no prudent person can ever reach such a conclusion and where the basic ingredients of a
criminal offence are not satisfied then the Court may interfere.

3) The High Court should not unduly interfere. No meticulous examination of the evidence
is needed for considering whether the case would end in conviction or not at the stage of
framing of charge or quashing of charge.

4) Where the exercise of such power is absolutely essential to prevent patent miscarriage
of justice and for correcting some grave error that might be committed by the subordinate
courts even in such cases, the High Court should be loathe to interfere, at the threshold, to
throttle the prosecution in exercise of its inherent powers.

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5) Where there is an express legal bar enacted in any of the provisions of the Code or any
specific law in force to the very initiation or institution and continuance of such criminal
proceedings, such a bar is intended to provide specific protection to an accused.

6) The Court has a duty to balance the freedom of a person and the right of the complainant
or prosecution to investigate and prosecute the offender.

7) The process of the Court cannot be permitted to be used for an oblique or

ultimate/ulterior purpose.

8) Where the allegations made and as they appeared from the record and documents
annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no
‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the
Court may be justified in quashing the charge. Even in such cases, the Court would not
embark upon the critical analysis of the evidence.

9) Another very significant caution that the courts have to observe is that it cannot examine
the facts, evidence and materials on record to determine whether there is sufficient material
on the basis of which the case would end in a conviction, the Court is concerned primarily
with the allegations taken as a whole whether they will constitute an offence and, if so, is
it an abuse of the process of court leading to injustice.

10) It is neither necessary nor is the court called upon to hold a full-

fledged enquiry or to appreciate evidence collected by the investigating agencies to find

out whether it is a case of acquittal or conviction.

11) Where allegations give rise to a civil claim and also amount to an offence, merely
because a civil claim is maintainable, does not mean that a criminal complaint cannot be
maintained.

12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court
cannot take into consideration external materials given by an accused for reaching the
conclusion that no offence was disclosed or that there was possibility of his acquittal. The
Court has to consider the record and documents annexed with by the prosecution.

13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the
offence is even broadly satisfied, the Court should be more inclined to permit continuation
of prosecution rather than its quashing at that initial stage. The Court is not expected to
marshal the records with a view to decide admissibility and reliability of the documents or
records but is an opinion formed prima facie.

14) Where the charge-sheet, reported under Section 173(2) of the Code, suffers from
fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

15) Coupled with any or all of the above, where the Court finds that it would amount to
abuse of process of the Code or that interest of justice favours, otherwise it may quash the

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charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial
justice for administration of which alone, the courts exist.”

Argument 2: Does the present case fall under the situations where the hon’ble court
can use the powers conferred by section 482 of the code of criminal procedure?

4)To qualify for the quashing of charges under the section 482 of the code the charges
framed should be patently absurd and inherently improbable that no prudent person can
ever reach such a conclusion and where the basic ingredients of a criminal offence are not
satisfied then the Court may interfere.
5) To understand the ingridients of the offences we need to looks ta the sections 3(1)(r)&(s)
of the Prevention of Atrocities Act, 1989. Which are as follows;
Section 3(1)(r) and section 3(1)(s) of the prevention of atrocities act states that
(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste
or a Scheduled Tribe in any place within public view;
(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place
within public view;

6)The supreme court in the case of Hitesh Verma v The state of Uttarakhand observed that;
“The basic ingredients of the offence under section 3(1)(r) of the Act can be classified as “1)I
intentionally insults or intimidates with intent to humiliate a member of scheduled caste of
scheduled tribe. 2) in any place within public view”

7)Similarly we can see that the ingredients for section 3(1)(s) are that
1. The abuses should be aimed at a member of a scheduled caste or a scheduled tribe
2. it should be in public view.

8)Thus, according to the ingredients as given by hitesh verma case the offence is made, under
section 3(1)(r) the as respondent made casteist remarks and humiliated him, when a clerk was
sitting in the chamber. As the ingredient of intentionally insulting with the view of humiliation
is fulfilled.
9)As far as the question of the offence being committed in public view is concerned, we need
to look at the following judgements and the intention of the legislature while drafting such a
legislation.
10)In the judgement of B. Sudhakar Reddy vs The S.H.O Hon’ble High Court of Andhra
Pradesh discusses the difference between the public view and the public place:

12
“The term 'public view' is not defined in the Act. People at large are compendiously called
the 'public'. In contra-distinction to the word 'private', the word 'public' denotes the concept
of a plurality. In "Words and Phrases (Vol.35 Permanent Edition, by West Publishing
Company)", the word "public place" is defined in various ways. A public place is a place
where the public has a right to go and be. It is one attended by public for business,
entertainment or similar reasons, and is is a place where the public generally are permitted
to assemble. (Goluguri Ramakrishna Reddy3). The words used in Section 3(1)(x) are in a
place within "public view", and not in a "public place". There is a distinction between an
incident within the "public view", and an incident in a "public place". (Karan Singh18).
The Legislature has used the words "...in any place within public view..." and not merely
the term "public place" or the term only "public view". The phrase 'in a place within the
public view' may be taken as a place where, ordinarily, the public visit for some purpose
or the other, with uninterrupted regularity though not continuously. "Public view" occurs
in a place that is reasonably expected to be viewed by another, and it is not necessary that
the incident was actually viewed by the public. It would be a contradiction in terms to hold
that, if a member of the Scheduled Castes or the Scheduled Tribes is insulted or intimidated
with the intention of humiliating him in a public place where there are no onlookers, it is
not an offence, but if a third person, other than the offender and the victim, is present in
the place it would be an offence. Such a thin line cannot be drawn, while interpreting any
of the clauses of Section 3(1) of the Act which, by themselves, are atrocities.”
11)The supreme court in the case of Swaran Singh & Ors vs State Tr.Standing Council
& Anr the court observed that;
“Even if the remark is made inside a building, but some members of the public are there
(not merely relatives or friends) then also it would be an offence since it is in the public
view. We must, therefore, not confuse the expression `place within public view' with the
expression `public place'. A place can be a private place but yet within the public view.”

12)Hence in this plaint the quashing of the charges was not correct, and goes against the
previous judgments of the Hon’ble Supreme Court. Thus is invalid and needs to be
reviewed.

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 PRAYER

It is, humbly prayed, in the light of the issues raised, arguments advanced, and authorities
cited, the court may be pleased to adjudge and declare that,

1. Allow the appeal filed by the appellant.

2. Dismiss the order which the High Court has passed of quashing the order of framing of
charges upheld by the trial court.

3. Hold that the offences under Section 3(1)(r) and Section 3(1)(s) of Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 have been committed.

AND / OR

Pass any other order or relief that this Hon’ble court may deem fit in the interest of
Justice, Equity and Good Conscience.

PLACE:
DATE: (Counsels for the Appellant)

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