suit against disconnection for excess loading - Apart from asserting that it was engaged in the business of manufacture of calendars, diaries, stationery items etc. and denying any misuse of electricity or exceeding the sanctioned load, the plaintiff in its reply dated 06.01.1992 had not taken any specific stand with regard to the findings of the inspection dated 14.06.1991. The said reply dated 06.01.1992 does not contain any specific reference to the findings of the inspection regarding installation of machineries which are normally used for manufacture of PVC conduit pipes. To make the discussions complete we would also like to observe in the present case that plaintiff was given an option to remove the excess load failing which it was made clear it will be charged at the higher rate of tariff. We have also found that the bill for Rs.3,38.378.02 for the period 06.06.1991 to February 1992 was prepared and submitted for payment by the plaintiff in accordance with the terms and conditions of supply in force in the DESU and that the said bill was prepared after consideration of the stand taken by the plaintiff in its reply dated 06.01.1992. No infirmity or illegality is disclosed in any of the actions of the defendant infringing any known right of the plaintiff so as to entitle it to a decree of perpetual injunction as prayed for.

                                             NON-REPORTABLE
             IN THE SUPREME COURT OF INDIA
                  CIVIL APPELATE JURISDICTION
                  CIVIL APPEAL No. 8207    of 2012
                  Arising out of SLP (C) No.33409 of 2009)


Shree Om Enterprises Pvt. Ltd.            … Appellant

                                   Versus

BSES Rajdhani Power Ltd.                       … Respondent


                            J  U  D  G  M  E  N T


RANJAN GOGOI, J

1.    Leave granted.

2.    The appellant is aggrieved  by  the  dismissal  of  its  suit  by  the
learned trial court which decree has been affirmed in First appeal  as  well
as by the High Court in Second Appeal.

3.    The plaintiff is a Private Limited Company engaged in the business  of
printing of calendars, diaries, stationery items,  packing  materials  since
the year 1983 in premises located in A-98/3, Okhla  Industrial  Area,  Phase
II, New Delhi. The plaintiff claims  to  be  registered  as  a  small  scale
industrial unit under the Directorate of Industries,  Delhi  Administration.
According to the plaintiff it  is  also  holding/held  a  license  from  the
Municipal Corporation of Delhi for running the unit of  printing  press  and
has been registered under the Press and Registration of Books Act, 1867  and
with the Registrar of Newspapers for India. The  plaintiff  also  claims  to
have been allotted a code No. by the Reserve Bank of India for the  purposes
of import and export of calendars, diaries, booklets, wedding  and  greeting
cards, printing books, posters and other material etc. printed in  its  unit
at the premises described above.

4.    According to the plaintiff it had been issued two separate  electrical
connections bearing No.K 011 1304067 and  K  011  1304075  for  running  the
printing press. The plaintiff received a letter dated  06.11.1991  (Ex.P-14)
from the  Assistant  Engineer,  Delhi  Electric  Supply  Undertaking  (DESU)
stating that an inspection was conducted in the premises  of  the  plaintiff
on 14.06.1991 in respect of electric connection No. K  011  1304067  in  the
course of which the connected load  was  found  to  be  beyond  the  maximum
permissible sanctioned load of 100 KW for Small Industrial  Power  Consumers
(SIP). The same had the effect of placing the plaintiff in the  category  of
large Industrial Power Consumers (LIP). Accordingly,  in  the  letter  dated
06.11.1991 the plaintiff was given an option to remove the excess  load  and
it was further informed that till then the plaintiff would be billed at  the
higher  tariff  applicable  to  LIP  consumers  along  with  surcharge,   as
applicable, under the terms and conditions of supply. By  the  letter  dated
06.11.1991 the plaintiff was also informed that in  the  inspection  carried
out on 14.06.1991, the power factor was found to  be  below  the  prescribed
limit as the shunt capacitor had not been installed or maintained  properly.
Accordingly, the plaintiff was also informed  that  it  was  liable  to  pay
surcharge at the prevailing rate on the total amount of bill.

5.    In the plaint filed it was further stated that the plaintiff, who  had
no knowledge of the aforesaid  inspection,  received  another  letter  dated
03.12.1991 enclosing  a  copy  of  an  Inspection  Report  dated  14.06.1991
(Ex.P.10).  In the said inspection report details  of  the  machinery  found
installed in the premises of the plaintiff for manufacture  of  PVC  conduit
pipes were mentioned.  According to the plaintiff, on 06.01.1992,  a  common
reply to the  letters/notices  dated  06.11.1991  and  03.12.1991  was  sent
claiming that the business of  the  plaintiff  was  printing  of  calendars,
diaries,  stationery  items  and  packing  materials;  that  there  was   no
manufacture of PVC conduit pipes in its premises and further that there  was
no misuse of electricity and excess of load beyond the  sanctioned  load  or
installation of  inadequate  and  improper  capacitor   as  alleged  in  the
notices under reply.  However,  according  to  the  plaintiff,  despite  its
reply dated 06.01.1992 (Ex.P-11) a bill for Rs.3,38.378.02  was received  by
it for the period 06.06.1991 to February, 1992 threatening disconnection  on
failure to make payment of the said bill on or before 06.04.1992.  It is  in
these circumstances that the plaintiff had filed the  suit  in  question  on
06.04.1992  seeking  a  decree  of  perpetual  injunction  restraining   the
defendants from enforcing the disconnection notice  and  from  disconnecting
power supply against Meter No. K 011 1304067 installed in  the  premises  of
the plaintiff at A-98/3, Okhla Industrial Area, Phase II, New Delhi.

6.     The  defendant,  namely,  General  Manager,  DESU  filed  a   written
statement in the case stating that on 14.06.1991 an inspection  was  carried
out in  the  premises  of  the  plaintiff  which  revealed  that  the  total
connected load in the premises was 190 KW which is  far  in  excess  of  the
limit for SIP consumers,  i.e.,  100  KW.  Accordingly,  the  notices  dated
06.11.1991 and 03.12.1991 along with the inspection report dated  14.06.1991
were issued and on consideration of the reply dated 06.01.1992 submitted  by
the plaintiff, the bill for Rs.3,38,378.02 was served and  disconnection  of
electric power to the plaintiff’s premises was  contemplated  in  the  event
the plaintiff failed to pay the bill on or  before  the  due  date.  In  the
written statement filed by  defendants  it  was  categorically  stated  that
machineries for manufacture of PVC conduit pipes  were  found  installed  in
the  premises  of  the  plaintiff  in  the  course  of  inspection  held  on
14.06.1991. It was further stated that such inspection was  carried  out  in
the presence of the representative of the plaintiff – Company.

7.    The parties had gone to trial on the aforesaid pleadings on the  basis
of which several specific issues were framed. The  plaintiff’s  suit  having
been dismissed by  all  the  courts,  the  present  appeal  has  been  filed
contending that the dismissal of the suit, all along, is plainly opposed  to
the materials and evidence on record and  that  such  dismissal,  ex  facie,
discloses errors apparent on the face of the record.

8.    We have heard Shri CS Vaidyanathan, learned  senior  counsel  for  the
appellant and Shri K.Datta, learned counsel for the respondent.

9.    Learned counsel for the appellant has  elaborately  taken  us  through
the pleadings of the parties and the evidence  of  PW  1-  Shri  Gobind  Ram
Bafna and DW 1- Shri S.S. Gupta.  Learned counsel has  submitted  that  from
the evidence of PW 1 it is clear that no inspection was carried out  in  the
premises of the plaintiff on 14.06.1991 as claimed which fact finds  support
from the evidence of DW 1 who had admitted that  he  is  not  aware  of  the
identity and status  of  the  person  who  was  present  on  behalf  of  the
plaintiff at the time of inspection. Learned counsel, by  referring  to  the
certificate issued by the Sales  Tax  Department  (Exh.D-1),  has  submitted
that in terms  of  the  said  certificate  the  plaintiff  was  entitled  to
purchase raw materials for the purpose of manufacture  of,  inter-alia,  PVC
pipes.  The said certificate only entitled the plaintiff to claim  exemption
from sales tax on such purchases and by no means could be understood  to  be
proof of the fact that the plaintiff was actually  manufacturing  PVC  pipes
in its premises.  Learned counsel has also drawn the attention of the  court
to the Balance-sheet and Profit & Loss Account of the  plaintiff  –  Company
enclosed in the Income-tax Return for the year ending 31st  March,  1992  to
show that no where in the  said  documents  there  is  any  mention  of  PVC
conduit pipes which fact would have, in the normal course, found  a  mention
had the plaintiff Company been engaged in the  business  of  manufacture  of
such PVC pipes. Learned counsel has also drawn the attention  of  the  court
to the telegram dated 01.04.1992 (Ex.P-12) issued on its behalf whereby  the
findings recorded in the report of inspection dated 14.06.1991  with  regard
to manufacture of PVC pipes had been categorically denied.

10.   Learned counsel for the respondent, on the other hand,  has  submitted
that the response of the appellant to the  letters/notices  dated  6.11.1991
and 3.12.1991 issued by the competent authority of the DESU  are  absolutely
vague and ambiguous.  Apart from asserting   that  it  was  engaged  in  the
business of manufacture of calendars, diaries,  stationery  items  etc.  and
denying any misuse of electricity  or exceeding  the  sanctioned  load,  the
plaintiff in its reply dated 06.01.1992 had not  taken  any  specific  stand
with regard to the findings of the inspection  dated  14.06.1991.  The  said
reply dated 06.01.1992 does  not  contain  any  specific  reference  to  the
findings of the inspection regarding installation of machineries  which  are
normally used for manufacture of PVC conduit  pipes.   The  stand  taken  on
behalf of the plaintiff in the  telegram  dated  01.04.1992  (Ex.P-12)  was,
therefore, an after thought.  In so far as the oral  evidence  of  PW  1  is
concerned it is submitted  that  the  said  witness  had  been  inconsistent
inasmuch as while denying that any inspection was carried out on  14.06.1991
in his examination-in-chief,  the  said  witness  in  cross-examination  had
admitted that such an inspection had taken place.  In  this  regard  learned
counsel has pointed out that in the evidence  of  DW  1  there  is  a  clear
reference to the fact that  the  representative  of  the  plaintiff,  though
present at the time of  inspection,  had  refused  to  sign  the  inspection
report. Merely because DW 1 was not  aware  of  the  status  of  the  person
representing the plaintiff Company at the time of inspection, will not  cast
any doubt with regard to the holding of the inspection  itself.  Lastly,  it
is submitted that the plaintiff  having  exceeded  the  maximum  permissible
load for SIP consumers was  liable  for  payment  of  surcharge  and  higher
tariff in accordance with the terms and conditions  of  supply  of  electric
power by the DESU. Similarly, the appellant having  failed  to  install  the
requisite capacitor was also liable to pay surcharge as contemplated by  the
said terms and conditions of supply. It is on the  aforesaid  basis  and  in
accordance with the terms  and  conditions  of  supply  that  the  bill  for
Rs.3,38.378.02 for the period 06.06.1991 to February, 1992 was  issued  with
the contemplation that if the same remained unpaid on or before  06.04.1992,
electric supply to the premises of the plaintiff would be disconnected.

11.   We have considered the submissions advanced before us.  We  have  also
perused the pleadings of the parties and the evidence of PW 1 and also DW  1
as well as the several documents brought on  record  including  the  notices
dated 06.11.1991 and 03.12.1991 and the inspection  report  dated  14.6.1991
sent by the defendant  to  the  plaintiff  as  well  as  the  reply  of  the
plaintiff dated 06.12.91 and the telegram dated 01.04.1992 in  this  regard.


On such consideration what we find is that the present  appeal  raises  what
is pre-eminently a question of  fact,  namely,  whether  the  Plaintiff  had
exceeded the sanctioned load as permissible for SIP  consumers  and  whether
the Plaintiff was responsible for low load factor as it  had  not  installed
the requisite capacitor. In a situation  where  three  Courts  have  already
dealt with the aforesaid question and have recorded concurrent  opinions  on
the issue, it would be wholly inappropriate for this Court to  go  into  the
same  unless  an  apparent  perversity  can  be,  ex-facie,  found  in   the
conclusions reached. It is from the aforesaid limited  perspective  that  we
had persuaded ourselves to go into the  matter.  On  such  consideration  we
find that the plaintiff in its reply dated 6.1.1992  submitted  in  response
to the notices issued by the Defendant on 6.11.1991 and 3.12.1991  had  only
asserted that it is engaged in the manufacture  and  printing  of  calendars
etc. and that it had not exceeded the sanctioned load. There is no  positive
stand taken with regard to the findings of the inspection  as  mentioned  in
the report dated 14.06.1991. Neither  any  evidence  had  been  led  by  the
plaintiff to establish that the machinery mentioned in the  inspection  note
to have been found installed in its premises were not so installed  or  that
such machinery was not used or utilized by the plaintiff for manufacture  of
PVC conduit pipes. It was incumbent on the part of the  plaintiff,  who  had
claimed in the suit that the report of inspection was  incorrect,  to  prove
the said facts by means of legally acceptable  evidence.  No  such  evidence
was forthcoming, perhaps, because the plaintiff had taken the stand that  no
inspection at all was carried out.  Though the plaintiff tried to prove  the
said fact i.e. that no inspection took place through PW 1, the  evidence  of
the said witness  on  the  aforesaid  score  is  wholly  inconsistent.   The
reliance placed on the evidence of DW 1 in  this  regard  is  also  somewhat
misplaced in as much as DW 1 had clearly stated that he was a member of  the
joint inspection team which had carried out the inspection on 14.6.1991  and
that the report of inspection prepared was  refused  to  be  signed  by  the
plaintiff’s representative though he was present at the time of  inspection.
The mere inability of the DW 1 to specify  the  status  of  the  plaintiff’s
representative present at the  site  would  not,  in  any  way,  affect  the
credibility of the fact that an inspection was,  infact,  carried  out.   It
has also to be noticed that the specific denial with regard to the  business
of manufacture of PVC conduit pipes in the premises  of  the  plaintiff  had
come  only  in  the  telegram  dated  01.04.1992  sent   by   the   advocate
representing the plaintiff. In the absence of any clear stand to  the  above
effect in the reply of the plaintiff dated 6.12.1991,  the  subsequent  plea
put forth in the telegram dated 01.04.1992  must  be  understood  to  be  an
after thought on the part of the plaintiff and the result of an  attempt  to
improve its case through its counsel.

12.   To make the discussions complete we would also like to observe in  the
present case that plaintiff was given an option to remove  the  excess  load
failing which it was made clear it will be  charged at the  higher  rate  of
tariff.  We have also found that the bill for Rs.3,38.378.02 for the  period
06.06.1991 to February 1992 was prepared and submitted for  payment  by  the
plaintiff in accordance with the terms and conditions of supply in force  in
the DESU and that the said bill was  prepared  after  consideration  of  the
stand taken by the plaintiff in its reply dated 06.01.1992. No infirmity  or
illegality is disclosed in any of the actions of  the  defendant  infringing
any known right of the plaintiff  so  as  to  entitle  it  to  a  decree  of
perpetual injunction as prayed for.

13.   For all the aforesaid reasons we find  no  merit  whatsoever  in  this
appeal. It is  accordingly  dismissed  and  the  judgment  and  order  dated
18.08.2009 of the High Court of Delhi is affirmed.




                                        ................J.
                                        [P.SATHASIVAM]






                                        ................J.
                                        [RANJAN GOGOI]
New Delhi,
November 22,2012


      -----------------------
16

A criminal trial cannot be allowed to assume the character of fishing and roving enquiry. It would not be permissible in law to permit a prosecution to linger, limp and continue on the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused. Such a course of action is not contemplated in the system of criminal jurisprudence that has been evolved by the courts over the years. A criminal trial, on the contrary, is contemplated only on definite allegations, prima facie, establishing the commission of an offence by the accused which fact has to be proved by leading unimpeachable and acceptable evidence in the course of the trial against the accused. Section 464 of Indian Penal Code which defines the offence of “forgery” encompasses a dishonest or fraudulent act of a person in making a document with the intention of causing it to be believed that such document was made, signed, sealed etc. by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed etc. If such an act of a person is covered by the definition of “forgery” contained in Section 464 of the Penal Code we do not see as to why the action of the accused S.K. Khosla in making the endorsement in the Investment Renewal Form dated 22.03.1993 of Vyasa Bank, in the light of the surrounding facts and circumstances already noted, cannot, prima facie, amount to making of a document with an intention of causing it to be believed that the same was made by or by the authority of the joint account holder Satish Mehra. The said document having contained an endorsement that the FD be altered/renewed in the single name of accused Anita Mehra and the Bank having so acted, prima facie, the commission of offences under Sections 467, 468 and 471 read with Section 120B IPC, in our considered view, is disclosed against the accused S.K. Khosla. The order of the High Court quashing the charges framed against S.K. Khosla under Sections 467, 468 and 471 IPC read with Section 120B IPC in so far as the Investment Renewal Form dated 22.03.1993 and FD No.0756223 with Vyasa Bank, therefore, is clearly unsustainable. We therefore interfere with the aforesaid part of the order of the High Court in so far as the accused S.K. Khosla is concerned. 23. Consequently and in the light of the foregoing discussions we allow the Criminal Appeals arising out of Special Leave Petition (Crl) Nos. 3546 and 910 of 2012 and allow the Criminal appeal arising out of Special Leave petition (Crl) No. 569 of 2012 in part and to the extent indicated above.

| Reportable       |


               IN THE SUPREME COURT OF INDIA
              CRIMINAL APPELATE JURISDICTION
               CRIMINAL APPEAL No.1834 of 2012
                 (Arising out of SLP (Crl.) No.569 of 2012)

Satish Mehra                                     … Appellant

                                   Versus

State of N.C.T. of Delhi & Anr.          …Respondents

                                    WITH

                       CRIMINAL APPEAL No.1836 of 2012
        (Arising out of SLP (Crl.)No.3546 of 2012)

                                    WITH

                       CRIMINAL APPEAL No.1835 of 2012
        (Arising out of SLP (Crl.)No.910 of 2012)


                            J  U  D  G  M  E  N T


RANJAN GOGOI, J

      Leave granted.
2.    In  a  proceeding  registered  as  FIR  case  No.  110/94  (P.S.
Connaught Place) charges under  different  provisions  of  the  Indian
Penal Code were framed by the learned Trial Court, inter-alia, against
the accused appellants G.K. Bhatt and R.K.  Arora.   In  the  revision
petition filed before the High Court (Crl. Rev. P. No.  304/2003)  for
quashing of the charges framed, relief has  been  denied  to  the  two
appellants.  However, part  relief  had  been  granted  to  two  other
accused i.e. Anita Mehra (petitioner in Crl. M.C. No.  2255/2003)  and
S.K. Khosla (Petitioner in Crl. Rev.P. No.299/2003).  While denial  of
relief by the High Court by the impugned  order  dated  13th  October,
2011 has been challenged in the appeals  filed  by  the  accused  R.K.
Arora and G.K. Bhatt, the grant of partial relief to one of the two co-
accused  i.e. S.K. Khosla has been challenged in the appeal  filed  by
the complainant/ first respondent, Satish Mehra.

3.    The facts giving rise to the present appeals may now be noted in
some detail.
      The appellant Satish Mehra and accused Anita Mehra were  married
some time in the year 1980. At the relevant point of  time  they  were
living in the USA.   From about October, 1992, the  relations  between
husband and wife became strained and both were locked in a  series  of
litigations  including  litigations  pertaining  to  custody  of   the
children born out of the marriage.

4.    On 06.01.1994, the appellant  Satish Mehra  lodged  a  complaint
before the Additional Deputy Commissioner of Police New Delhi that  he
along with his wife Anita Mehra had opened five Foreign Currency  Non-
Resident Fixed  Deposits  (FCNR  FD)  of  the  total  value  of  about
Rs.20,00,000/- in their joint names.  According  to  the  complainant,
accused  S.K.  Khosla  who  is  his  father-in-  law  had  forged  his
signatures on the F.D receipts  and got the same renewed in  the  sole
name of  Anita Mehra  who, thereafter, encashed the value thereof  and
unauthorisedly  received the payments due. The details of the FCNR FD,
according to the complainant, are as follows:
      “i)    FCNR FD Nos.9/92 and 22/91 with Canara Bank;
         ii) FCNR FD Nos.103402 and 103403 with Punjab  and       Sind
             Bank and ;


       iii) FCNR FD No. 0756223 with Vyasa Bank.”



5.    On  receipt  of  the  aforesaid  complaint,  FIR  No.110/94  was
registered, on investigation whereof the  following  facts  appear  to
have come to light:
      I)    S.K. Khosla had made an endorsement on the reverse of  the
      receipt pertaining to FCNR FD Nos.22/91 to the effect  that  the
      said FDR be renewed in the sole name of Anita Mehra;
      II)   On 23.11.1992 and 12.03.1993 Canara Bank renewed  FCNR  FD
      Nos.22/91 and 9/92 respectively on  the  basis  of  the  letters
      dated 09.10.1992 written by Anita Mehra to the  Bank  requesting
      for the said renewals. Pursuant to the said renewals made by the
      Bank, Anita Mehra encashed FD No. 22/91;
      III)  Before FD No.9/92 could be encashed  by  Anita  Mehra  the
      Bank cancelled the renewal of the said FD in the  sole  name  of
      Anita Mehra and re-renewed the same in the joint names of  Anita
      Mehra and Satish Mehra;
      IV)  On 09.11.1992 Punjab and Sind Bank renewed FDs Nos.  103402
      and 103403 in the sole name of Anita Mehra on the  basis  of  an
      endorsement made by S.K. Khosla on the reverse of the receipt of
      each of  the said FDs to the effect that the said FDs be renewed
      in the sole name of Anita Mehra;
      V)    Punjab and Sind Bank claimed to have renewed the  FD  Nos.
      103402 and 103403 in the sole name of Anita Mehra on  the  basis
      of a letter dated 09.10.1992 written by Anita Mehra to the  Bank
      requesting for such renewal but the said letter seems  to  be  a
      manipulated  document  as  it  was  received  by  the  Bank   on
      09.11.1993 which was much after the renewal of the said FDs; and
      VI)   On 22.03.1993 Vyasa Bank renewed FCNR FD  No.  0756223  on
      the basis of a Investment Renewal Form dated  22.03.1993  signed
      by both Satish Mehra and  Anita  Mehra;   however  Satish  Mehra
      claimed that he had made no such request to Vyasa bank and  that
      he had misplaced a blank Investment Renewal Form of  Vyasa  Bank
      which contained his signature.
      VII) There was an endorsement of the accused S.K. Khosla in  the
      Investment Renewal Form to the effect that  FD  No.  0756223  of
      Vyasa Bank be renewed in the sole name of accused Anita Mehra as
      against  the joint names of Anita Mehra and  Satish  Mehra.  The
      signatures of Anita Mehra and Satish  Mehra  in  the  Investment
      Renewal Form appear to be old and faded whereas the  endorsement
      made by S.K.Khosla on  the  said  form  is  a  fresh  one.   The
      passport number of Satish Mehra entered in the said Form is  the
      old/surrendered passport of the said person.

6.    In the light of the aforesaid facts revealed in  the  course  of
investigation of FIR No.  110/94,  a  cancellation  report  was  filed
before the learned trial court. The appellant Satish Mehra  filed  his
objections to the said cancellation  report.   Thereafter,  on  a  due
consideration, the learned trial court directed further  investigation
in the matter in the course of which the FD receipts in question;  the
letters dated 09.10.1992 purportedly of accused  Anita  Mehra  to  the
Canara and Punjab and Sind Bank; the  Investment  Renewal  Form  dated
22.03.1993 submitted to Vyasa Bank and   the  admitted  signatures  of
accused Anita Mehra, S.K. Khosla and the complainant Satish Mehra were
sent to the Central Forensic Laboratory.  On receipt of the report  of
the laboratory,  charge  sheet  dated  28.08.1997  was  filed  by  the
investigating agency against the accused S.K. Khosla alone.

7.    The learned trial court, however, directed summons to be  issued
to the two appellants G.K. Bhat, Chief Manager of the concerned Branch
of Canara Bank and R.K. Arora, Senior  Manager of the said  Branch  as
well to one A.P. Singhna, Manager of Punjab and Sind Bank and also  to
the accused Anita Mehra  (wife  of  the  complainant)  for  trial  for
offences punishable under Sections 420, 468,  471  read  with  Section
120 B of the Indian Penal Code.

8.    Against the aforesaid order of the learned trial court, the High
Court of Delhi was moved by the accused for setting  aside  the  order
issuing summons and for quashing the proceeding as a whole.  By  order
dated 23.10.2002, the High Court took the view that as all issues  and
contentions raised  can be so raised before the learned trial court at
the time of framing of charge, interference would  not  be  justified.
Thereafter, by order dated  21.12.2002  and  08.01.2003,  the  learned
trial court framed charges against the accused appellants,  G.K.  Bhat
and R.K. Arora under Sections 120B and 420 of the  Indian  Penal  Code
(in respect of FD Nos. 22/91 and 9/92 of Canara Bank).   Charges  were
also framed against accused S.K. Khosla and Anita Mehra under Sections
120 B, 420, 467, 468, 471 IPC in respect of all five FDs.

9.    Aggrieved by the aforesaid orders of the  learned  trial  court,
all the accused moved the High Court of  Delhi  for  quashing  of  the
charges framed  against  them  and  also  for  interference  with  the
Criminal proceedings pending against the accused  before  the  learned
trial court.
10.   The High Court, by the impugned order  dated  13.10.2011,  while
declining any relief to the appellants G.K. Bhat and R.K.  Arora,  set
aside the charges framed against accused S.K.  Khosla  under  Sections
120 B and 420 IPC in respect of FD Nos. 22/91 and 9/92 as well as  the
charges framed against the said accused under Sections  467,  468  and
471 IPC read with Section 120 B IPC.  In so far as the  accused  Anita
Mehra is concerned, the High Court interfered  with the charges framed
against the aforesaid accused under Sections 467,  468  and  471  read
with Section 120 B.  The  rest  of  the  charges  in  so  far  as  the
aforesaid two accused S.K. Khosla and Anita Mehra  is  concerned  were
maintained by the High Court.

11.   Aggrieved, the present appeals have been filed by  accused  G.K.
Bhat and R.K. Arora  in  so  far  as  FD  Nos.   22/91  and  9/92  are
concerned. While the other accused have not challenged  the  order  of
the High Court declining full and complete reliefs as  prayed  for  by
them, it is the complainant/first informant,  Satish  Mehra,  who  has
instituted the connected appeal in so far as the part  relief  granted
to accused S.K. Khosla is concerned.

12.  We  have  heard  S/Shri  M.N.  Krishnamani,   Brijender   Chhahr,
P.V.Shetty and Mukul Gupta, learned senior counsel for the  respective
parties.

13.   Learned counsel for the appellants G.K.Bhat and R.K.  Arora  has
argued that no material whatsoever has been brought on record to, even
prima  facie,  show  the  involvement  of  either  of  the  accused  –
appellants with any of the offences  alleged.   Mere  holding  of  the
office of Chief Manager and Senior Manager of the concerned Branch  of
the Canara Bank, by itself, will not make  the  accused  –  appellants
liable unless the positive role of either of  the  appellants  in  the
renewal of the FDs in the sole name of accused Anita Mehra or in   the
encashment of one of the FDs (FD No.22/91) by the aforesaid accused is
disclosed.  Learned counsel has also relied on the provisions  of  the
Regulations/Guidelines, relating to Fixed Deposit,  as in force in the
Bank to contend that the action of accused – appellants  has  been  in
conformity with the mandate of the Banking Norms even if it is  to  be
assumed that they had any role to play in the matter of renewal of the
FDs in the sole name of the accused Anita  Mehra  and  the  subsequent
encashment of FD No.22/91.  On the other hand, learned counsel for the
first informant  /appellant,  Satish  Mehra  has  contended  that  the
connivance of the Bank officials in the fraudulent renewal of the  FDs
is ex facie apparent and further that the endorsements made by accused
S.K. Khosla on the reverse of the FDs and in  the  Investment  Renewal
Form of Vyasa Bank clearly attract the ingredients of the  offence  of
‘forgery’ as defined under Section 464 of the IPC.  It is,  therefore,
submitted that the interference  made  by  the  High  Court  with  the
charges framed under Sections 467,  468,  471  and  120B  IPC  against
accused S.K. Khosla is not tenable in law.

14.   Though a criminal complaint lodged before the  court  under  the
provisions of Chapter XV of the Code of Criminal Procedure or  an  FIR
lodged in the police station under Chapter XII of the Code has  to  be
brought to its logical conclusion in  accordance  with  the  procedure
prescribed, power has been conferred under Section 482 of the Code  to
interdict such a proceeding in the event  the  institution/continuance
of the criminal proceeding amounts to  an  abuse  of  the  process  of
court.  An early discussion of the law in this regard can be found  in
the decision of this court  in  R.P.  Kapur  vs.  State  of  Punjab[1]
wherein the parameters of exercise of the  inherent  power  vested  by
Section 561A  of  the  repealed  Code  of  Criminal  Procedure,  1898,
(corresponding of Section 482 Cr.P.C., 1973) had been laid down in the
following terms :
            “ (i)  Where  institution/continuance  of  criminal  proceedings
      against an accused may amount to the abuse of the process of the court
      or that the quashing of the impugned proceedings would secure the ends
      of justice;


            (ii) where it manifestly appears  that  there  is  a  legal  bar
      against the institution or continuance of  the  said  proceeding  e.g.
      want of sanction;


            (iii)  where the allegations in the first information report  or
      the complaint  taken  at  their  face  value  and  accepted  in  their
      entirety, do not constitute the offence alleged; and


            (iv) where the allegations constitute  an  offence  alleged  but
      there is either no legal evidence adduced or evidence adduced  clearly
      or manifestly fails to prove the charge.”

15.   The power to interdict a proceeding either at the  threshold  or
at an intermediate stage of the trial is inherent in a High  Court  on
the broad principle that in case the allegations made in  the  FIR  or
the criminal complaint, as may be,  prima  facie  do  not  disclose  a
triable offence there can be reason as to why the  accused  should  be
made to suffer the agony of a legal proceeding that  more  often  than
not gets protracted.  A prosecution which is bound to become  lame  or
a sham  ought to interdicted in the interest of justice as continuance
thereof will amount to an abuse of the process of the  law.   This  is
the core basis on which the power to interfere with a pending criminal
proceeding has been recognized to be inherent in every High Court. The
power, though available, being extra ordinary  in  nature  has  to  be
exercised sparingly and only if the attending facts and  circumstances
satisfies the narrow test indicated above, namely, that even accepting
all the  allegations  levelled  by  the  prosecution,  no  offence  is
disclosed. However, if so warranted, such  power  would  be  available
for exercise not only at the threshold of a  criminal  proceeding  but
also at a relatively advanced stage thereof, namely, after framing  of
the charge against  the  accused.   In  fact  the  power  to  quash  a
proceeding after framing of charge would appear to be  somewhat  wider
as, at that stage, the materials revealed by the investigation carried
out usually comes on record and such materials can be looked into, not
for the purpose of determining the guilt or innocence of  the  accused
but for the purpose of drawing satisfaction that such materials,  even
if accepted in its entirety, do  not,  in  any  manner,  disclose  the
commission of the offence alleged against the accused.

16.   The above nature and extent of the  power  finds  an  exhaustive
enumeration in a judgment of this court in State of Karnataka  vs.  L.
Muniswamy and others[2]  which may be usefully extracted below :
      “ 7. The second limb of Mr Mookerjee's argument is that in  any  event
      the High Court could not take upon itself the  task  of  assessing  or
      appreciating the weight of material on the record  in  order  to  find
      whether  any  charges  could  be  legitimately  framed   against   the
      respondents. So long as there  is  some  material  on  the  record  to
      connect the accused with the crime, says the learned counsel, the case
      must go on and the High Court has no jurisdiction to put a precipitate
      or premature end to the proceedings on the belief that the prosecution
      is not likely to succeed.  This,  in  our  opinion,  is  too  broad  a
      proposition to accept. Section 227 of the Code of Criminal  Procedure,
      2 of 1974, provides that:
      . . . . .
      This section is contained in Chapter  XVIII  called  “Trial  Before  a
      Court of Session”. It is clear from the provision  that  the  Sessions
      Court has the power to discharge an  accused  if  after  perusing  the
      record and hearing the parties he comes to the conclusion, for reasons
      to be recorded, that there is not  sufficient  ground  for  proceeding
      against the accused. The object of the provision  which  requires  the
      Sessions Judge to record his reasons is to enable the  superior  court
      to examine the correctness of the reasons for which the Sessions Judge
      has held that there is or is  not  sufficient  ground  for  proceeding
      against the accused. The High Court therefore is entitled to  go  into
      the reasons given by the Sessions Judge in support of his order and to
      determine for itself whether the order is justified by the  facts  and
      circumstances of  the  case.  Section  482  of  the  New  Code,  which
      corresponds to Section 561-A of the Code of 1898, provides that:
      . . . . .
      In the exercise of this wholesome power, the High Court is entitled to
      quash a proceeding if it comes to the  conclusion  that  allowing  the
      proceeding to continue would be an abuse of the process of  the  Court
      or that the ends of justice require that the proceeding  ought  to  be
      quashed. The saving of the High Court's inherent powers, both in civil
      and criminal matters, is designed to achieve a salutary public purpose
      which is that  a  court  proceeding  ought  not  to  be  permitted  to
      degenerate into a weapon of harassment or persecution. In  a  criminal
      case, the veiled object behind a lame prosecution, the very nature  of
      the material on which the structure of the prosecution rests  and  the
      like would justify the High Court in quashing the  proceeding  in  the
      interest of justice. The ends of justice are higher than the  ends  of
      mere law though justice has got to be administered according  to  laws
      made by the legislature. The compelling  necessity  for  making  these
      observations is that without a proper realisation of  the  object  and
      purpose of the provision which seeks to save the  inherent  powers  of
      the High Court to do justice, between the State and its  subjects,  it
      would be impossible to appreciate  the  width  and  contours  of  that
      salient jurisdiction.”

      It would also be worthwhile to recapitulate an earlier  decision
of this court in Century Spinning & Manufacturing  Co.  vs.  State  of
Maharashtra[3] noticed in L. Muniswamy’s case (Supra) holding that the
order framing a charge affects a person’s  liberty  substantially  and
therefore it is the duty of the court to consider  judicially  whether
the materials warrant the framing of the charge. It was also held that
the court ought not to blindly accept the decision of the  prosecution
that the accused be asked to face a trial.

17.   While dealing with contours of the inherent power under  Section
482 Cr.P.C. to quash a criminal proceeding, another decision  of  this
court in Padal Venkata Rama Reddy alias Ramu vs. Kovvuri  Satyanaryana
Reddy and others  reported in (2011) 12 SCC 437 to  which  one  of  us
(Justice P.Sathasivam) was a party may be usefully  noticed.   In  the
said decision after an  exhaustive  consideration  of  the  principles
governing the exercise of the said  power  as  laid  down  in  several
earlier decisions this court held that:
      31. . . . . When exercising jurisdiction  under  Section  482  of  the
      Code, the High Court would  not  ordinarily  embark  upon  an  enquiry
      whether the evidence in question is reliable  or  not  or  whether  on
      reasonable appreciation of it accusation would not be sustained.  That
      is the function of the trial Judge. The scope  of  exercise  of  power
      under Section 482 and the categories of cases where the High Court may
      exercise its power under it relating to cognizable offences to prevent
      abuse of process of any court or  otherwise  to  secure  the  ends  of
      justice were set out in detail in Bhajan Lal[4]. The powers  possessed
      by the High Court under Section 482 are very wide and at the same time
      the power requires great caution in its exercise. The  Court  must  be
      careful to see that its decision in exercise of this power is based on
      sound principles. The inherent power should not be exercised to stifle
      a legitimate prosecution.”

18.   In an earlier part of this order the allegations made in the FIR
and the facts disclosed upon investigation of the  same  have  already
been noticed.  The conclusions of the  High  Court  in  the  petitions
filed by the accused for quashing of the charges framed  against  them
have also been taken note of along with the fact that in  the  present
appeals only a part of said conclusions of the  High  Court  is  under
challenge and therefore, would be required to be gone into.

19.   The view expressed by this  Court  in  Century  Spinning’s  case
(supra) and in L. Muniswamy’s case (supra)  to  the  effect  that  the
framing of a charge  against  an  accused  substantially  affects  the
person’s liberty would require  a  reiteration  at  this  stage.   The
apparent and close proximity between the framing  of  a  charge  in  a
criminal proceeding and the paramount rights of a person arrayed as an
accused under Article 21 of the Constitution can be ignored only  with
peril.  Any examination of the validity of a  criminal  charge  framed
against an accused cannot overlook the  fundamental  requirement  laid
down in the decisions  rendered  in  Century  Spinning  and  Muniswamy
(supra).  It is from the aforesaid perspective that we must proceed in
the matter bearing in mind the cardinal principles of  law  that  have
developed over the years as fundamental to  any   examination  of  the
issue as to  whether the charges  framed  are  justified  or  not.  So
analysed, we find that in the present case neither in the FIR  nor  in
the charge sheet or in any of the materials collected in the course of
investigation any positive role of either  of  the  appellants,  i.e.,
G.K. Bhat and R.K. Arora has been disclosed in the matter  of  renewal
and encashment of the fixed deposits.  All that  appears  against  the
aforesaid two accused is that one was the Chief Manager  of  the  Bank
whereas the other accused was at the  relevant  time  working  as  the
Senior Manager.  What role, if any,  either  of  the  accused  had  in
renewing the two fixed deposits in the sole name of Anita Mehra or the
role that any of them may have had in the  payment of the  amount  due
against FD No. 21/91 to Anita Mehra or in cancelling  the  FD  No.9/92
renewed in the sole name of Anita Mehra and thereafter making a  fresh
FD in the joint Anita Mehra and Satish Mehra, is not disclosed  either
in the  FIR  filed  or  materials  collected  during  the   course  of
investigation or in the charge sheet filed before  the  court.   There
can be no manner of doubt that some  particular  individual  connected
with the Bank must have authorized the aforesaid  acts.  However,  the
identity of the said person does not  appear  from  the  materials  on
record. It is certainly not the prosecution case that  either  of  the
accused-appellants had authorised  or  even  facilitated  any  of  the
aforesaid action. In such a situation to hold either of  the  accused-
appellants to be, even prima facie, liable  for  any  of  the  alleged
wrongful acts would be a matter of conjecture as  no  such  conclusion
can be reasonably and justifiably drawn from the  materials  available
on record.
A criminal trial cannot be allowed to assume the  character
of fishing and roving enquiry. It would not be permissible in  law  to
permit a  prosecution to linger, limp and continue on the basis  of  a
mere hope and expectation that in the trial some material may be found
to implicate the accused.  Such a course of action is not contemplated
in the system of criminal jurisprudence that has been evolved  by  the
courts over  the  years.   A  criminal  trial,  on  the  contrary,  is
contemplated only on definite allegations, prima  facie,  establishing
the commission of an offence by the  accused  which  fact  has  to  be
proved by leading unimpeachable and acceptable evidence in the  course
of the trial against the accused.  We are, therefore, of the view that
the criminal proceeding in the present form  and  on  the  allegations
levelled is clearly not maintainable against either of the  accused  –
appellant G.K. Bhat and R.K. Arora.

20.   The next question that  has  to  be  addressed  is  whether  the
criminal charges against accused S.K. Khosla under Sections  120B  and
420 IPC in so far as FD Nos. 22/91 and 9/92 are concerned  along  with
the charges under Sections 467, 468 and 471 read with Section 120B  of
the IPC had  been  rightly  quashed  by  the  High  Court.   From  the
materials on record it appears that in so  far  as  FD  No.  22/91  is
concerned an endorsement on the reverse of the FD was made by  accused
S.K. Khosla that the said F.D. may be renewed in  the  name  of  Anita
Mehra.  However, renewal of the said FD was made by the  Bank  on  the
basis of a letter dated 09.10.1992 written by Anita Mehra to the Bank.
 If the above fact has been revealed in the course of investigation of
the FIR no liability in respect of the  FD  bearing  No.22/91  can  be
fastened on the accused S.K. Khosla.  Neither is there any  allegation
against S.K. Khosla with regard to receipt of the  money  against  the
aforesaid FD by Anita Mehra.   Similarly  in  respect  of  FD  bearing
No.9/92 there is no allegation that renewal of the said FD was made on
the basis of any endorsement or request made by S.K. Khosla.   In  the
light of above facts it  cannot  be  held  that  the  High  Court  had
committed any error in quashing the charges under  Sections  120B  and
420 IPC against the accused S.K. Khosla in so far as the aforesaid two
FDs, i.e. FD Nos.22/91 and 9/92,  are concerned.

21.   Coming to the charges under Sections 467,  468,  471  read  with
Section 120B IPC framed  against accused S.K. Khosla, we do  not  find
that FD Nos.22/91 and 9/92 of  Canara  Bank  and  FDS  Nos.103402  and
103403 of Punjab and Sind Bank were renewed in the sole name of  Anita
Mehra on the basis of the endorsement made on the reverse  of  the  FD
receipts by accused SK Khosla to the above effect.   In fact, the said
FDs were renewed on the basis of the letters addressed to the Bank  by
accused – Anita Mehra.  However, in respect of  FD No.0756223 of Vyasa
Bank  it appears that renewal of the aforesaid FD in the sole name  of
Anita Mehra was made on the basis of the Investment Renewal Form dated
22.03.1993 which was signed by both Satish Mehra and Anita Mehra.  The
said form also contained an endorsement made under  the  signature  of
accused SK Khosla to the effect that the FD be  renewed  in  the  sole
name of Anita Mehra.  It has been found upon investigation of the  FIR
and it has also been recorded by the learned trial court as well as by
the High Court that the signatures of Anita Mehra and Satish Mehra  on
the aforesaid Investment Renewal Form were old signatures and that the
Investment Renewal Form had  been  misplaced  by  Satish  Mehra.   The
particulars of Satish Mehra entered in  the  said  Investment  Renewal
Form, i.e., Passport number etc. being of the expired Passport can  be
understood to be facts supporting the allegations made in the FIR  and
the conclusion of the  investigating  agency  that  the  accused  S.K.
Khosla had used an Investment Renewal  Form  signed  by  Satish  Mehra
which was misplaced by him.  The signature and the endorsement made by
S.K. Khosla on the said form  had also been found, upon investigation,
to be relatively fresh in comparison to the signatures of Anita  Mehra
and Satish Mehra on the said form. This is an additional fact that has
to receive due consideration in the process of  determination  of  the
prima facie liability of the accused S.K. Khosla under  Sections  467,
468 and 471 read with Section 120B of the Indian Penal Code.

22.   Section 464 of Indian Penal Code which defines  the  offence  of
“forgery” encompasses a dishonest or fraudulent act  of  a  person  in
making a document with the intention of causing it to be believed that
such document was made, signed, sealed etc. by or by the authority  of
a person by whom or by whose authority he  knows that it was not made,
signed, sealed, executed etc. If such an act of a person is covered by
the definition of “forgery” contained in Section 464 of the Penal Code
we do not see as to why the action  of  the  accused  S.K.  Khosla  in
making  the  endorsement  in  the   Investment  Renewal   Form   dated
22.03.1993 of Vyasa Bank, in the light of the  surrounding  facts  and
circumstances already noted, cannot, prima facie,  amount  to   making
of a document with an intention of causing it to be believed that  the
same was made by or by the authority   of  the  joint  account  holder
Satish Mehra. The said document having contained an  endorsement  that
the FD be altered/renewed in the single name of  accused  Anita  Mehra
and the Bank having so acted, prima facie, the commission of  offences
under Sections 467, 468 and 471 read with Section  120B  IPC,  in  our
considered view, is disclosed against the accused  S.K.  Khosla.   The
order of the High Court quashing  the   charges  framed  against  S.K.
Khosla under Sections 467, 468 and 471 IPC read with Section 120B  IPC
in so far as the Investment  Renewal  Form  dated  22.03.1993  and  FD
No.0756223 with Vyasa Bank, therefore, is clearly  unsustainable.   We
therefore interfere with the aforesaid part of the order of  the  High
Court in so far as the accused S.K. Khosla is concerned.

23.   Consequently and in the light of the  foregoing  discussions  we
allow the Criminal Appeals arising out of Special Leave Petition (Crl)
Nos. 3546 and 910 of 2012  and allow the Criminal appeal  arising  out
of Special Leave petition (Crl) No. 569 of 2012 in  part  and  to  the
extent indicated above.


                                                            ……………………………………J.
                                              [P. SATHASIVAM]


                                                            ……………………………………J.
                                              [RANJAN GOGOI]
New Delhi,
November 22, 2012





-----------------------
[1]         AIR 1960 SC 866
[2]         AIR 1977 SC 1489
[3]         AIR 1972 SC 545
[4]         1992 Supp. (1) SCC 335

-----------------------
28

Neither, the accused can be attributed with the knowledge that the offence of murder was likely to be caused or to occur in prosecution of the common object. At best what can be said and held is that the common object of the assembly of the accused was to teach PW-4 and the deceased Vinod a lesson on account of the previous altercation that had taken place in the course of which PW-4 and the deceased had slapped one of the accused, i.e. Gopi. The accused persons, including the present appellants, as members of the unlawful assembly were committed and in fact had indulged in the use of force in prosecution of the aforesaid common object. The same would, however, render the accused appellants liable only for the offence under Section 147 and 148 of the IPC for which they have already been convicted by the learned trial court as also by the High Court.while maintaining the conviction of the appellants under Section 147and 148 of the IPC and the sentence imposed they are entitled to be acquitted for the offences under Section 302 read with Section 149 IPC. If the accused appellants have already served the sentence for the offences under Section 147 and 148 of the IPC we direct that, unless their custody is required in connection with any other case, the accused appellants be set at liberty forthwith. The Judgment and Order of the High Court is modified accordingly and the appeals are partly allowed to the extent indicated above.

|Reportable     |


               IN THE SUPREME COURT OF INDIA
                CRIMINAL APPELATE JURISDICTION
           Criminal Appeal Nos. 1262-1264 of 2010

Bharat Soni etc.                                   … Appellants

                                   Versus

State of Chhatisgarh                         …Respondent


                                    WITH


                      Criminal Appeal No. 1873 of 2011


                            J  U  D  G  M  E  N T



RANJAN GOGOI, J.


      Four of the seven accused persons whose conviction under  Section  302
IPC and the sentence of life imprisonment has  been  affirmed  by  the  High
Court of Chhattisgarh have filed the instant  appeals  challenging  Judgment
and Order dated 30th November, 2009 of the High  Court.      We  have  heard
the learned counsels for the appellants as well as the learned  counsel  for
the State.

2.      The short case of the prosecution is that  on  05.12.2000  at  about
8.55 p.m., Santosh (PW-4) lodged a  FIR  in  the  Ambikapur  Police  Station
stating that a short while  ago  i.e.  at  about  8.40  p.m.  while  he  was
standing in front of his house alongwith deceased Vinod  and  Amit  (PW-13),
accused Gopi Ghasia(A-6)  and  Ranu(A-5)  had  come  there  in  a  state  of
intoxication.  According to the first informant, an altercation  took  place
in the course of which he  as  well  as  Vinod  had  slapped  accused  Gopi.
Enraged, the accused persons went away threatening to kill them.   According
to the first informant, after about an hour, the  four  accused  appellants.
i.e. Bharat, Dhruv, Sanjay and Rupesh accompanied by accused Ranu, Gopi  and
Jitender came  to  the  place   armed  with  different  kinds  of  dangerous
weapons.  Specifically it was mentioned that accused  Gopi  had  come  armed
with a Nepali Khukhri; accused Ranu had a knife  with  him  whereas  accused
Jitender was armed with a Nan Chaku. In so far as accused Bharat  and  Dhruv
are concerned, it was claimed by the first informant that while  the  former
was armed with an iron rod, accused Dhruv had carried a leather belt in  his
hand.  In the FIR it was further alleged that  accused  Ranu  had  assaulted
the first informant Sanjay (PW-4) with a knife but he  had  escaped  without
any serious injuries.  However, accused Gopi and Ranu gave  knife  blows  to
the deceased Vinod on his  chest  and  stomach  whereas  accused  Dhruv  and
Bharat had assaulted Amit Kashyap (PW-13) with the belt and  iron  rod  that
they had carried.   According to the first  informant,  accused  Rupesh  and
Sanjay had instigated the other accused to kill the deceased Vinod.  Due  to
the assault committed on Vinod, he had sustained injuries for  which  reason
he had to be taken to the hospital.

3.    On receipt of the FIR a case under Sections 147,148, 149  and  307  of
the IPC was registered.  However as the injured Vinod  died  at  about  9.15
p.m. on the same night, the offence under Section 302 was added in the  FIR.
  The crime alleged was duly investigated and on completion thereof all  the
seven accused were charge sheeted under Section 147, 148,  302/149  of  IPC.
Thereafter, the case was committed for trial to the court  of  sessions  and
charges under Sections  147,  148,  302/149  IPC  were  framed  against  the
accused persons. As the accused claimed innocence a regular trial was  held,
 at the conclusion of which all the seven accused were found guilty  of  the
charge  under  Section  147,  148,   302/149  IPC.   They  were  accordingly
sentenced.  The  separate appeals filed by  the  seven  accused  before  the
High Court having been dismissed by the  impugned  order  dated  30.11.2009,
the accused Bharat, Dhruv, Sanjay and Rupesh have challenged  the  aforesaid
order of the High Court in the appeals filed by them before this Court.

4.     Before adverting to the core  legal  issue  arising  in  the  present
appeals, namely, the liability of the accused  appellants  for  the  offence
under Section 302 IPC on the basis of their constructive liability, if  any,
under Section 149 IPC, it will be necessary to notice, though very  briefly,
the salient part of the evidence adduced by the prosecution  in  support  of
the charges levelled.

5.    Of the fifteen witnesses examined by the prosecution, the evidence  of
Sonu Kewat (PW-1), Suraj Dass (PW-2), (though declared hostile), Ram  Naresh
(PW-3), Prakash Suryavanshi (PW-5),  Imtiaz Ali (PW-6) and  Dr.  S.K.  Sinha
(PW-7) would be relevant.  Equally, the evidence of   (PW-4) and  PW-13  who
had been examined as the eye-witnesses to  the  incident  will  have  to  be
noticed in some details.

6.    From the deposition of PW-1, PW-2, PW-3 and PW-5, it  transpires  that
the aforesaid witnesses had come to the place of occurrence on  hearing  the
commotion that had taken  place.  The  said  witnesses,  without  any  major
discrepancies or contradictions, have narrated that on  reaching  the  place
of occurrence they could see the deceased Vinod lying injured  and  all  the
seven accused fleeing away therefrom. However, two of the  accused,  namely,
Dhruv and Bharat were apprehended by the persons who  had  gathered  at  the
place of occurrence, having come there on hearing  the  commotion  that  had
taken place.  It may be noticed, at this  stage,  that  in  so  far  as  the
identity of the accused is concerned, no issue has been raised on behalf  of
the accused at any point of time.

7.    Imtiyaz Ali (PW-6) is  a  witness  to  the  recovery  of  the  alleged
weapons of assault.  All such recoveries were made at the  instance  of  the
accused persons.  Specifically, PW-6 has deposed that on the  basis  of  the
statement of accused Jitender a Nan Chaku (Ex.P-7) was  recovered.   At  the
instance of accused Gopi and Ranu a Nepali Khukri and a  Gupti  (Ex.P-8  and
Ex.P-11 respectively)  was  recovered.   Similarly,  on  the  basis  of  the
statement of accused Dhruv and Bharat a leather belt and an iron rod  (Ex.P-
14 and Ex.P-15) were recovered.

8.    Dr. S.K. Sinha  (PW-7)  M.O.  District  Hospital,  Ambikapur  who  had
conducted the post mortem of the deceased Vinod had  proved  the  report  of
post-mortem (Ex.P-26). This witness had deposed that  corresponding  to  one
of the external injuries found i.e. an  incised  wound  over  the  abdominal
wall below the umbilicus, internal injuries cutting the diaphragm and  lower
lobe of the right and left lung were found by  him  on  the  person  of  the
deceased.

9.    PW-4 who was examined as an  eye-witness  had  deposed  that  all  the
seven accused persons, including the four appellants, had come  together  to
the place of occurrence at about 8.40 pm on  05.12.2000.  This  witness  had
specifically deposed that accused Bharat, who was armed with  a  Gupti,  had
assaulted the deceased in the stomach with the said weapon. However, in  the
FIR filed by him, he had stated that accused Bharat was armed with  an  iron
rod. Similarly in his deposition, PW-4 had stated  that  accused  Dhruv  was
also holding a Gupti whereas in the FIR it had been mentioned that the  said
accused was armed with a leather belt.  In a similar manner, though  in  the
FIR accused Sanjay and Rupesh had been alleged to be the  persons  who  were
instigating the others to kill Vinod, in his deposition in  court  PW-4  had
stated that he had seen the accused Sanjay assaulting the  deceased  in  the
thigh with a Gupti. In so far as accused Rupesh is concerned  PW-4  had  not
implicated the said accused in any manner at all while  deposing  in  court.
Similarly, PW-4 had not implicated accused Jitender his  evidence  in  court
though in the FIR filed he had specifically mentioned that accused  Jitender
was armed with a Nan Chaku. In so far  as  the  accused  Gopi  and  Ranu  is
concerned PW-4 has, however, been consistent in the alleged  involvement  of
the said two accused both in the FIR as well as in the  deposition  tendered
in Court.

10.    On the other hand,  Amit  Kashyap  (PW  13),  had  deposed  that  the
accused  persons,  including  the  present   appellants,   were   assaulting
(beating) Vinod with hands and fists and were also kicking  him.    However,
when he (PW-13) along with others had rushed towards Vinod to save him,  the
accused persons took out the Guptis that  they  were  carrying  and  started
assaulting the deceased with  the  said  weapons.  Specifically,  PW-13  had
stated that accused Ranu had stabbed the  deceased  with  a  dagger  on  the
stomach and the accused Jitender had also inflicted a Gupti blow  though  he
could not see the particular part of the body of the deceased on  which  the
Gupti blow was inflicted by the accused Jitender.

11.    Furthermore, reading the evidence of PW-13 it is clearly  discernible
that the said witness has tried not to involve the  accused  Bharat  in  the
incident.  The motive for the same, as evident  from  the  cross-examination
of PW-13, is some relationship  between  the  two  i.e.  PW-13  and  accused
Bharat.  Specifically,  PW-13  had  stated  that  he  had  not  seen  Bharat
committing any assault on the deceased and that he was also not sure  as  to
whether Bharat had accompanied the other accused persons  and  also  whether
he was holding any weapon at all. PW-13 has also given a different  sequence
of the arrival of the seven accused persons at the place of  occurrence.  In
this regard he had stated that while  five  accused  had  arrived  together,
accused Bharat arrived at the place of occurrence thereafter  and  the  last
to arrive was the accused Sanjay.

12.    Having noticed the essential features of  the  evidence  tendered  by
the prosecution witnesses we may now proceed to examine  the   liability  of
the accused appellants, all or any of them, on the  principle  of  vicarious
or constructive liability under  Section  149  of  the  IPC.  The  aforesaid
provision of the IPC is in the following terms:
      “149. Every member of unlawful assembly guilty of offence committed in
      prosecution of common object – If  an  offence  is  committed  by  any
      member of an unlawful assembly in prosecution of the common object  of
      that assembly, or such as the members of  that  assembly  knew  to  be
      likely to be committed in prosecution of  that  object,  every  person
      who, at the time of the committing of that offence, is a member of the
      same assembly, is guilty of that offence.”




13.    An assembly of five or more persons having as its common  object  any
of the five objects enumerated under Section 141 of the IPC is deemed to  be
an unlawful assembly.  Membership of  an  unlawful  assembly  is  itself  an
offence punishable under Section 143  whereas  other  species  of  the  said
offence are dealt with under Sections 143 to 145  of  the  IPC.   Similarly,
Sections 146 to 148 of the IPC deals with the offence of  rioting  which  is
defined to be use of force or violence by any member  thereof.  Section  149
makes every member of an unlawful assembly liable for offence  that  may  be
committed by any member of the  unlawful  assembly  in  prosecution  of  the
common object of that assembly or for commission of  any  offence  that  the
members of the assembly knew to be likely to be committed in prosecution  of
the common object of the assembly.


14.    Section 149 IPC, therefore, engrafts  a  principle  of  vicarious  or
constructive liability inasmuch as a person would be guilty of  an  offence,
though he may not have directly committed the same if  as  a  member  of  an
unlawful assembly he had shared a common object with the  other  members  to
commit such an offence or if he knew that such  offence  was  likely  to  be
committed in prosecution of the common object of the assembly  of  which  he
was a member.

15.    The purport and effect of the  provisions  of  Section  149  IPC  has
received the consideration of this court on more than one occasion.  Without
referring to any particular or specific precedent available  on  the  point,
it would suffice to say that  determination  of  the  common  object  of  an
unlawful assembly or the determination of the question whether a  member  of
the unlawful assembly knew that the offence that was  committed  was  likely
to be committed is essentially a question of fact  that  has   to   be  made
keeping  in  view  the nature of the  assembly,  the  arms  carried  by  the
members and the behaviour of the members  at or near the scene  and  a  host
of similar or connected facts and circumstances that cannot be entrapped  by
any attempt at an exhaustive enumeration.

16.    In Dani Singh Vs. State of Bihar[1] the meaning of the  word  “common
object” had been  considered  by  this  Court.  The  relevant  part  of  the
discussion may be summarized up below:

           11.......The word “object” means the purpose or design  and,  in
           order to make it “common”, it must be shared by  all.  In  other
           words, the object should be common to the persons,  who  compose
           the assembly, that is to say, they should all be aware of it and
           concur in it......


           12......The “common object” of an assembly is to be  ascertained
           from the acts and language of the members composing it, and from
           a consideration of all the surrounding circumstances. It may  be
           gathered from the course of conduct adopted by  the  members  of
           the assembly. What the common object of the unlawful assembly is
           at a particular stage of the incident is essentially a  question
           of fact to be determined, keeping in  view  the  nature  of  the
           assembly, the arms carried by the members, and the behaviour  of
           the members at or near the scene of the incident.....


           13......An object is entertained in the human mind, and it being
           merely a mental attitude, no direct evidence  can  be  available
           and, like intention, has generally to be gathered from  the  act
           which the person commits and the  result  therefrom.  Though  no
           hard-and-fast rule can be laid down under the circumstances from
           which the common object can be culled out, it may reasonably  be
           collected from the nature of the assembly, arms it  carries  and
           behaviour at or before or after the scene of incident.....”


17.    In a recent decision of this court  in  Kuldip  Yadav  Vs.  State  of
Bihar[2] to which one of us (Justice Sathasivam) was a party, the  principle
of constructive liability under Section 149 IPC had once again  received  an
elaborate consideration.  In paragraph 39 of the judgment it was held  that:

           “It is not the intention of the legislature in enacting  Section
      149 to render every member of unlawful assembly liable  to  punishment
      for every offence committed by one or more of its members.   In  order
      to attract Section 149, it must be shown that  the  incriminating  act
      was done to accomplish the common object of  lawful  assembly  and  it
      must be within the knowledge of other members  as  one  likely  to  be
      committed in prosecution of the common object.”



18.    In para 40 of the judgment an earlier decision in Rajendra  Shantaram
Todankar Vs State of Maharashtra[3]  was noticed, particularly, the  opinion
that ....”It is difficult indeed, though not impossible, to  collect  direct
evidence of such knowledge.  An inference may be  drawn  from  circumstances
such as the background of the  incident,  the  motive,  the  nature  of  the
assembly, the nature of the arms carried by the  members  of  the  assembly,
their common object and the behaviour of the  members  soon  before,  at  or
after the actual commission of the crime.”

19.    Having enumerated the principles of law governing the application  of
the principle of constructive liability under Section 149 IPC, it  will  now
be necessary to apply the said principles to the facts of the  present  case
as disclosed by the evidence on record.

20.    The presence of the accused appellants along with the  other  accused
at the place of occurrence and at the  time  and  date  as  claimed  by  the
prosecution is not in dispute.  It is also not in doubt that the two of  the
accused i.e. Gopi and Ranu (not before us) had an altercation  with  Santosh
(PW-4) and the deceased Vinod about an hour  earlier  to  the  incident  and
that the two accused had left the place threatening  that  they  would  come
back to kill Santosh (PW-4) and Vinod.  Thereafter, all  the  seven  accused
had come armed with weapons. From the evidence of  the  prosecution  witness
it transpires that some of the accused had attacked Santosh (PW-4) and  Amit
(PW-13) who were present at the spot besides assaulting the  deceased  Vinod
in the stomach with  sharp  weapons  resulting  in  his  death.    From  the
evidence of PW-1, PW-2, PW-3  and PW-5  it clearly transpires  that all  the
seven accused, after the incident, were seen trying to flee  away  from  the
place of occurrence and, in fact, two of the accused i.e. Dhruv  and  Bharat
(Appellants before us) were apprehended by the persons present at the spot.

21.  As against the above, what we find is  several  serious  contradictions
in the evidence of PW-4 and the previous statement made by him in  the  FIR.
 The discrepancies are too significant to be  ignored.  As  the  details  in
this regard have already  been  noticed  the  same  need  not  be  repeated.
Suffice it will be to say that such discrepancies in the  evidence  of  PW-4
relate to vital aspects of the case, namely,  the  weapons  carried  by  the
accused persons; who amongst the accused had assaulted the deceased and  the
weapon(s) used. On the other hand, from the evidence of PW-13 it  transpires
that the accused persons were initially assaulting the deceased  with  their
hands and fists and were giving him blows and kicks. It is only at  a  later
stage i.e. when PW-13 and others had  rushed  to  save  Vinod  that  accused
persons are reported to have taken out the weapons they were  carrying  i.e.
guptis. Specifically PW-13 had implicated only  accused  Jitender  and  Ranu
(not appellants) as the persons who had inflicted knife and gupti  blows  on
the deceased though he had  stated  that  he  could  not  see  the  specific
part(s) of the body of the deceased on which assault was  committed  by  the
accused Jitender.

22.    From the above it is clear that not only the  testimony  of  PW-4  is
self contradictory, the versions of the two eye-witnesses in so far  as  the
involvement of the accused-appellants is concerned is at variance with  each
other. Insofar as accused Rupesh is concerned he has hardly been  implicated
and the prosecution evidence, properly read, would seem to show that he  was
a mere passive onlooker. Also,    PW-13 is wholly silent with regard to  the
involvement of any of the four accused  appellants  before  this  Court.  In
fact, PW-13 had gone to the extent of stating that the  accused  Bharat  may
not have accompanied the other accused to the place  of  occurrence  and  he
was in fact not holding any weapon at  all.  The  recovery  of  the  alleged
weapons at the instance of the accused, if the oral evidence of PW-4 and PW-
13 is to be  excluded,  will  not  be  sufficient  to  convict  the  accused
appellants under Section 149.  The incident  of  the  accused  fleeing  away
from the  place  of  occurrence,  similarly,  will  not  be  conclusive  and
determinative of the liability of the accused for  the  substantive  offence
under section 302 with the aid of section 149 IPC. There  is  no  convincing
and consistent evidence of any individual overt act on the part  of  any  of
the accused appellants to implicate any or  all  of  them  for  causing  the
fatal injuries on the body of the deceased. Having considered  the  evidence
brought by the prosecution, as discussed above, we are of the view  that  it
cannot be reasonably inferred that the accused appellants, as members of  an
unlawful assembly, had any common object to commit the offence of murder  of
the deceased  Vinod.  Neither,  the  accused  can  be  attributed  with  the
knowledge that the offence of murder was likely to be caused or to occur  in
prosecution of the common object.   At best what can be  said  and  held  is
that the common object of the assembly of the accused was to teach PW-4  and
the deceased Vinod a lesson on account of the previous altercation that  had
taken place in the course of which PW-4 and the deceased had slapped one  of
the  accused,  i.e.  Gopi.  The  accused  persons,  including  the   present
appellants, as members of the unlawful assembly were committed and  in  fact
had indulged in the use of force in  prosecution  of  the  aforesaid  common
object. The same would, however, render the accused appellants  liable  only
for the offence under Section 147 and 148 of the IPC  for  which  they  have
already been convicted by the learned  trial  court  as  also  by  the  High
Court.

22.   We are, therefore, of the view that while maintaining  the  conviction
of the appellants under Section 147and 148  of  the  IPC  and  the  sentence
imposed they are entitled to be acquitted for  the  offences  under  Section
302 read with Section 149  IPC.  If  the  accused  appellants  have  already
served the sentence for the offences under Section 147 and 148  of  the  IPC
we direct that, unless their custody is  required  in  connection  with  any
other case, the  accused  appellants  be  set  at  liberty  forthwith.   The
Judgment and Order of  the  High  Court  is  modified  accordingly  and  the
appeals are partly allowed to the extent indicated above.

                                       ...…………………………J.
                                             [P. SATHASIVAM]


                                        .........……………………J.
                                             [RANJAN GOGOI]
New Delhi,
November 22, 2012.
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[1]         (2004) 13 SCC
[2]         (2011) 5 SCC 324
[3]         (2003) 2 SCC 257

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