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Friday, February 3, 2017

Further investigation ? = In contradistinction,Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1171 OF 2016
(ARISING OUT OF S.L.P (CRIMINAL) NO.3338 OF 2015)

AMRUTBHAI SHAMBHUBHAI PATEL .…APPELLANT

VERSUS
SUMANBHAI KANTIBHAI PATEL & ORS. ....RESPONDENTS
J U D G M E N T

AMITAVA ROY, J.
The assail is of the verdict dated 10.04.2015 rendered by the High
Court, setting at naught the order dated 27.5.2014 passed by the Chief
Judicial Magistrate, Gandhinagar, whereby the Trial Court had allowed the
application filed by the appellant, the original informant, under Section
173(8) of the Code of Criminal Procedure, 1973 (for short, hereinafter
referred to as “the Code/1973 Code”) for further investigation by the
police.

2. We have heard Mr. Sanjay Hegde, learned senior counsel for the
appellant and M/s. Zakir Hussain, Nitya Ramakrishan, and Shamik
Sanjanwala, learned counsel for the respondent Nos. 1,2 and 3 respectively.
3. The facts indispensable for the present adjudication, portray that
the appellant had lodged a First Information Report (for short hereafter
referred to as “FIR”) against the respondents under Sections 406, 420, 426,
467, 468, 471, 477B and 120B of the Indian Penal Code (for short also
referred to as “IPC”). The materials offered in the FIR and the
investigation by the police that followed, divulged that there was a
dispute between the parties relating to agricultural land and that the
appellant/informant had alleged forgery of the signatures and thumb
impression of his as well as of his family members in the register
maintained by the Notary (Public). After the charge-sheet was submitted,
charge was framed against the respondents and they stood the trial
accordingly, as they denied the imputations. As would be gleanable from
the records, the oral evidence of the appellant/first informant was
concluded on 03.07.2012 followed by that of the investigating officer of
the case on 10.09.2013. Subsequent thereto, the statements of the
respondents were recorded under Section 313 Cr.PC on 03.12.2013, whereafter
an application was filed at the culminating stages of the trial by the
appellant/informant seeking a direction under Section 173(8) from the Trial
Court for further investigation by the police and in particular to call for
a report from the Forensic Science Laboratory as regards one particular
page of the register of the Notary (Public), which according to the
appellant/informant was of debatable authenticity, as it appeared to have
been affixed/pasted with another page thereof. To be precise, this
application was filed at a stage when the case was fixed for final
arguments.
4. The Trial Court, however, by the order impeached before the High
Court granted the prayer made and issued a direction to the police for
further investigation. Significantly, prior thereto in Special Leave
Petition being SLP (Crl.) No.9106 of 2010, this Court had directed
expeditious disposal of the trial. It is also worthwhile to record that the
application filed by the appellant/informant under Section 173(8) of Cr.PC
had been opposed by the respondents herein, who being dissatisfied with the
order of the Trial Court, thus impugned the same before the High Court.
5. The High Court, as the impugned decision would disclose exhaustively
examined the purport of Section 173(8) in the particular context of the
scope of further investigation by the police after it had submitted a
charge sheet and the Trial Court had taken cognizance on the basis thereof
and had proceeded with the trial, following the appearance of the accused
persons. It, amongst others took note of the 41st Report of the Law
Commission of India which after reflecting on the oftly adopted view of the
Courts that once a final report under Section 173 had been submitted by the
police, the latter could not touch the case again and reopen the
investigation, recommended that it ought to be made clear that under the
said provision of the Code, it was still permissible for the police to
examine any evidence even after the submission of the charge-sheet and to
submit a report to the Magistrate. Thus, the Law Commission's emphasis was
to obviate any hindrance in the way of the investigating agency, which in
certain fact situations could be unfair to the prosecution as well as to
the accused.
6. The High Court having regard to this recommendation and the
incorporation of Section 173(8) as a sequitur thereof held that it was
permissible for the investigating officer or the officer-in-charge of the
police station to undertake a further investigation even after the filing
of the charge sheet, but neither the informant nor the accused could claim
as a matter of right, any direction from the Court directing such further
investigation under the said provision after a charge-sheet was filed. The
High Court traced the law as expounded by this Court from its renderings in
Ram Lal Narang v. State (Delhi Administration), (1979) 2 SCC 322 vis-à-vis
the scope and purport of Section 173 of Cr.P.C. in particular, qua further
investigation by the police after it had submitted charge-sheet in a case.
The exposition by this Court in Ram Lal Narang (supra) that neither
Sections 173 nor 190 of the Code of Criminal Procedure, 1898 did suggest
exhaustion of the power of the police to further investigate even after the
Magistrate had taken cognizance of the offence already on record and that
the police could exercise such right as often as necessary when fresh
information would come to light and it desired to make further
investigation was noted. However, while doing so, it was observed that in
deference to the Court, the police ought to ordinarily seek its formal
permission to make further investigation. The High Court in this
perspective, observed that a further investigation could in a given factual
setting, sub-serve the interest of the prosecution and even of the defence.

7. The High Court in its verdict also adverted to the decision of the
Privy Council in King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC18 which
stressed upon the restraint of the judiciary against interference with the
police in matters which were within its province, holding that the roles of
these two institutions were complementary and not overlapping, subject
however to the right of the Courts to intervene in an appropriate case for
directions in the nature of habeas corpus.
8. The decision of this Court in Abhinandan Jha & Ors. v. Dinesh Mishra,
AIR 1968 SC 117 to the effect that the Magistrate could not direct the
police the course of investigation or to submit a charge-sheet when it had
already submitted a final report, was referred to as well. Reference to
the explication of law laid down by this Court in Randhir Singh Rana v.
State (Delhi Administration), (1997)1 SCC 361 on the powers available to a
Magistrate at different stages of a case before him in the singular context
of its competence to direct further investigation with reference thereto,
was relied upon. It was noted as well that a Magistrate, of his own, could
not order further investigation after an accused, pursuant to the process
issued against him on the basis of the charge-sheet already submitted, had
appeared in the case.
9. The pronouncement of this Court in Hasanbhai Valibhai Qureshi v.
State of Gujarat and others, (2004) 5 SCC 347 ruling that the police had
the power to conduct further investigation de hors any direction from the
Court even after it had taken cognizance was relied upon to reinforce its
conclusion.
10. The enumeration of this Court in Reeta Nag v. State of West Bengal &
Ors., (2009) 9 SCC 129 also to the same effect was adverted to. The High
Court thus deduced on the basis of an in-depth survey of the state of law,
as above, on the import and ambit of Section 173(8) Cr.P.C. that in absence
of any application or prayer made by the investigating authority for
further investigation in the case, the Trial Court had erred in allowing
the application filed by the appellant/informant for the same.
11. Without prejudice to this finding, the High Court was further of the
view that having regard to the sequence of events and the delay on the part
of the informant to make such a prayer at the closing stages of the trial,
it was not entertainable. In arriving at this determination, the High
Court, amongst others marked that the evidence of the appellant/informant
had been recorded in the year 2012 when he did have sufficient opportunity
to scrutinise the document in question but for inexplicable reasons did
wait for more than two years to register the prayer for further
investigation. It was of the view that the attendant factual setting did
not demonstrate any defective investigation which demanded curation through
a further drill and that in any view of the matter, additional report from
the Forensic Science Laboratory had not been called for. This is more so,
as in the view of the High Court, the entire register of the Notary
(Public) had been seized by the investigating officer and that any unusual
or suspicious feature therein would have been certainly examined by the FSL
and findings in connection therewith recorded. The High Court thus
interfered with the order of the Magistrate permitting further
investigation by the police in the case and ordered for expeditious
disposal of the trial.
12. Whereas the learned senior counsel for the appellant has strenuously
urged that the impugned order is patently indefensible, inasmuch as, if
maintained, it would result in travesty of justice and that not only the
Trial Court was within its competence to order further investigation in the
attendant facts and circumstances but also the same was essential to
unravel the truth bearing on the charge levelled against the respondents-
accused, the impugned order has been endorsed on behalf of the respondents
pleading that the same has been in abidance of the consistent judicially
pronounced postulations qua the scope and purport of Section 173(8) Cr.P.C.
and that no interference therewith is warranted.
13. Having regard to the contentious assertions, expedient it would be to
retrace the law propounded by this Court on the import and impact of
Section 173 Cr.PC, with particular reference to sub-Section (8) thereof.
For immediate reference, the afore-stated provision is extracted in full as
hereunder:
“173. Report of police officer on completion of investigation.- (1) Every
investigation under this Chapter shall be completed without unnecessary
delay.

(1A) The investigation in relation to rape of a child may be completed
within three months from the date on which the information was recorded by
the officer in charge of the police station.

(2) (i) As soon as it is completed, the officer in charge of the police
station shall forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by the State
Government, stating-

(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the
circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or
without sureties;
(g) whether he has been forwarded in custody under section 170;
(h) whether the report of medical examination of the woman has been
attached where investigation relates to an offence under section 376, 376A,
376B, 376C or 376D of the Indian Penal Code (45 of 1860).

(ii) The officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him, to the person,
if any, by whom the information relating to the commission of the offence
was first given.

(3) Where a superior officer of police has been appointed under section
158, the report, shall, in any case in which the State Government by
general or special order so directs, be submitted through that officer, and
he may, pending the orders of the Magistrate, direct the officer in charge
of the police station to make further investigation,

(4) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such order-
for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies,
the police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the Magistrate during
investigation;

(b) the statements- recorded under section 161 of all the persons whom the
prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement
is not relevant to the subject- matter of the proceedings or that its
disclosure to the accused is not essential in the interests of justice and
is inexpedient in the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and stating his reasons for
making such request.

(7) Where the police officer investigating the case finds it convenient so
to do, he may furnish to the accused copies of all or any of the documents
referred to in sub- section (5).

(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub- section
(2) has been forwarded to the Magistrate and, where upon such
investigation, the officer in charge of the police station obtains further
evidence, oral or documentary, he shall forward to the Magistrate a further
report or reports regarding such evidence in the form prescribed; and the
provisions of sub- sections (2) to (6) shall, as far as may be, apply in
relation to such report or reports as they apply in relation to a report
forwarded under sub- section (2).”

14. It would be appropriate at this juncture to set out as well the
Section 173 of the Code of Criminal Procedure 1898.

“Section 173. Report of police-officer.-

(1) Every investigation under this Chapter shall be completed without
unnecessary delay, and, as soon as it is completed, the officer in charge
of the police-station shall-

(a) forward to a Magistrate empowered to take cognizance of the offence on
a police-report a report, in the form prescribed by the State Government,
setting forth the names of the parties, the nature of the information and
the names of the persons who appear to be acquainted with the circumstances
of the case, and stating whether the accused (if arrested) has been
forwarded in custody, or has been released on his bond, and, if so,
whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the State
Government, the action taken by him to the person, if any, by whom the
information relating to the commission of the offence was first given.

(2) Where a superior officer of police has been appointed under section
158, the report shall, in any cases in which the State Government by
general or special order so directs, be submitted through that officer,
and he may, pending the orders of the Magistrate, direct the officer in
charge of the police-station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that
the accused has been released on his bond, the Magistrate shall make such
order for the discharge of such bond or otherwise as he thinks fit.

(4) After forwarding a report under this section, the officer in charge
of the police-station shall, before the commencement of the inquiry or
trial, furnish or cause to be furnished to the accused, free of cost, a
copy of the report forwarded under sub-section (1) and of the first
information report recorded under section 154 and of all other documents or
relevant extracts thereof, on which the prosecution proposes to rely,
including the statements and confessions, if any recorded under section
164 and the statements recorded under sub-section (3) of section 161 of all
the persons whom the prosecution proposes to examine as its witnesses.

(5) Notwithstanding anything contained in sub-section (4), if the police-
officer is of opinion that any part of any statement recorded under sub-
section (3) of section 161 is not relevant to the subject-matter of the
inquiry or trial of that its disclosure to the accused is not essential in
the interests of justice and is inexpedient in the public interests, he
shall exclude such part from the copy of the statement furnished to the
accused and in such a cause, he shall make a report to the Magistrate
stating his reasons for excluding such part.

Provided that at the commencement of the inquiry or trial, the Magistrate,
shall after perusing the part so excluded and considering the report of the
police-officer, pass such orders as he thinks fit and if he so directs, a
copy of the part so excluded or such portion thereof, as he thinks proper,
shall be furnished to the accused.

15. A plain comparison of these two provisions would amply demonstrate
that though these relate to the report of a police officer on completion of
investigation and the steps to ensue pursuant thereto, outlining as well
the duties of the officer in-charge of the concerned police station,
amongst others to communicate, the action taken by him to the person, if
any, by whom the information relating to the commission of offence was
first given, it is explicit that the recast provision of the 1973 Code did
incorporate sub-clause 8 as a significant addition to the earlier
provision.
16. The Forty-first Report of the Law Commission of India (for short,
hereinafter to be referred to as “the Commission”) on the Code of Criminal
Procedure, 1898 dealt with the aspect of reopening of investigation in the
context of the existing Section 173 of the Code 1898 and recommended in the
following terms:
“14.23: A report under section 173 is normally the end of the
investigation. Sometimes, however, the police officer after submitting the
report under section 173 comes upon evidence bearing on the guilt or
innocence of the accused. We should have thought that the police officer
can collect that evidence and send it to the magistrate concerned. It
appears, however, that courts have sometimes taken the narrow view that
once a final report under section 173 has been sent, the police cannot
touch the case again and cannot re-open the investigation. This view
places a hindrance in the way of the investigating agency, which can be
very unfair to the prosecution and, for that matter, even to the accused.
It should be made clear in section 173 that the competent police officer
can examine such evidence and send a report to the magistrate. Copies
concerning the fresh material must of course be furnished to the accused.”

17. The Commission in the above perspective proposed a revision of
Section 173 of Code 1898 in the following terms:

“14.24: We propose that section 173 should be revised as follows:-

I73. (1) Every investigation under this Chapter shall be completed without
unnecessary delay.

(2) As soon as it is completed, the officer in charge of the police station
shall forward to a Magistrate empowered to take cognizance of the offence
on a po1ice-report a report, in the form prescribed by the State
Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the
circumstances of the case;

(d) whether any offence appears to have been committed, and if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond under section 169, and, if so,
whether with or without sureties,-

(g) whether he has been forwarded in custody under section 170.

The officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him to the person,
if any, by whom the information relating to the commission of the offence
was ?rst given.

(3) Where a superior officer of police has been appointed under section
158, the report shall, in any cases in which the State Government by
general or special order so directs, be submitted through that officer, and
he may, pending the orders of the Magistrate, direct that officer in charge
of the police-station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such order
for the discharge of such bond or otherwise as he thinks ?t.

(5) When such report is in respect of a case to which section 170 applies,
the police-officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the Magistrate during
investigation; and

(b) the statements recorded under.....section 161 of all persons whom the
prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement
is not relevant to the subject-matter of the proceedings or that its
disclosure to the accused is not essential in the interests of justice and
is inexpedient in the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and stating his reasons for
making such request.

(7) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-section (2)
has been forwarded to the Magistrate. Where upon such investigation, the
officer in charge of the police station obtains further evidence, oral or
documentary he shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the provisions of sub-
sections (2) to (5) shall, as far as may be, apply in relation to such
report or reports as they apply in relation to a report under sub-section
(2).”

18. The Bill to consolidate and amend the law relating to criminal
procedure followed and was circulated in the Gazette of India,
Extraordinary, Part II, published on December 10, 1970 proposing, the Code
of Criminal Procedure, 1970. The Statement of Objects and Reasons clearly
disclosed that the recommendations of the Commission to overhaul the Code
1898 as made were accepted and vis-a-vis Section 173, which corresponded to
Section 176 in the aforementioned report, the amendment proposed was to
facilitate collection of evidence by the police after filing the charge-
sheet and production thereof before the Court, subject to the accused being
given usual facilities for copies. The remodelled Section 173 was identical
in form and substance to the one, as proposed by the Commission in chime
with its recommendation as contained in the Report. Sub-clause (7) of the
new Section 173, as proposed by the Commission and integrated in the Bill,
however eventually appeared as sub-clause (8) to the Section under Code
1973.
19. The newly added sub-section (8), as its text evinces, permits further
investigation by the concerned officer in-charge of the police station in
respect of an offence after a report under sub-section 2 had been forwarded
to the Magistrate and also to lay before the Magistrate a further report,
in the form prescribed, whereafter such investigation, he obtains further
evidence, oral or documentary. It is further ordained that on submission of
such further report, the essentialities engrafted in sub-sections 2 to 6
would apply also in relation to all such report or reports.
20. The integration of sub-section 8 is axiomatically subsequent to the
41st Report of the Law Commission Report of India conveying its
recommendation that after the submission of a final report under Section
173, a competent police officer, in the event of availability of evidence
bearing on the guilt or innocence of the accused ought to be permitted to
examine the same and submit a further report to the Magistrate concerned.
This assumes significance, having regard to the language consciously
applied to design Section 173(8) in the 1973 Code. Noticeably, though the
officer in-charge of a police station, in categorical terms, has been
empowered thereby to conduct further investigation and to lay a
supplementary report assimilating the evidence, oral or documentary,
obtained in course of the said pursuit, no such authorization has been
extended to the Magistrate as the Court is seisin of the proceedings. It
is, however no longer res integra that a Magistrate, if exigent to do so,
to espouse the cause of justice, can trigger further investigation even
after a final report is submitted under Section 173(8). Whether such a
power is available suo motu or on the prayer made by the informant, in
absence of request by the investigating agency after cognizance has been
taken and the trial is in progress after the accused has appeared in
response to the process issued is the issue seeking scrutiny herein.
21. Though noticeably the High Court, in the decision impugned, has aptly
referred to and relied upon the relevant pronouncements of this Court on
the issue involved, the authorities cited at the Bar in course of the
arguments demand recapitulation.
22. In Bhagwant Singh v. Commissioner of Police & Anr., (1985) 2 SCC 537,
a three Judge Bench of this Court was seized with the poser as to whether
in a case where the First Information Report is lodged and after completion
of the investigation initiated on the basis thereof, the police submits a
report that no offence has been committed, the Magistrate if is inclined to
accept the same, can drop the proceeding without issuing notice to the
first informant or to the injured or in case where the incident has
resulted in death, to the relatives of the deceased. This Court in its
adjudicative pursuit, embarked upon a scrutiny of the provisions of Chapter
XII of the Cr.P.C., dealt with Sections 154, 156, 157 thereof before
eluding to Section 173 of the Code. It noticed that under sub-Section (1)
of Section 154, every information relating to the commission of a
cognizable offence, if given orally to an officer in-charge of a police
station has to be reduced into writing by him or under his direction and is
to be read over to the informant and every such information whether given
in writing or reduced to writing, shall be signed by the person giving it
and that a copy thereof shall be given forthwith to the informant, free of
cost. It noticed that under Section 156(1), the officer in-charge of a
police station is vested with the power to investigate any cognizable case
without the order of the Magistrate and that sub-Section (3) authorized the
Magistrate empowered under Section 190 Cr.P.C. to order an investigation,
as mentioned in sub-Section (1). The prescription under Section 157(1)
requiring the officer in-charge of a police station to forthwith send a
report of the information to a Magistrate empowered to take cognizance of
such offence upon a police report, in case he has reason to suspect the
commission of an offence which he is empowered under Section 156 to
investigate, was taken note of. The mandate of Section 157(2) for the
police officer to notify the informant, in case he was of the view that no
sufficient ground for entering on an investigation had been made out, was
also referred to.
23. It noted as well that under Section 173(2)(i), the officer in-charge,
as soon as the investigation is completed, is required to forward to the
Magistrate empowered, a report in the prescribed form so as to enable the
Court to take cognizance of the offence based thereon. This Court also
adverted to Section 190 enumerating the modes of taking cognizance of an
offence by a Magistrate, as specified therein, either upon receiving a
complaint of facts which constituted such offence or upon a police report
of such facts or upon information received from any person other than a
police officer or upon his own knowledge that such offence had been
committed.

24. In the conspectus of the provisions of Cr.P.C. traversed, this Court
held the view that an informant who lodges the first information report
does not fade away therewith and is very much concerned with the action
initiated by the officer in-charge of the police station pursuant thereto,
so much so, that not only a copy of the said report is to be supplied to
him free of cost and in case, no investigation is intended, he has to be
notified of such decision. The reason, in the contemplation of this Court,
for the officer in-charge of a police station to communicate the action
taken by him to the informant and a report to the Magistrate under Section
173(2) Cr.P.C. was that the informant, who sets the machinery of
investigation into motion, was required to know what was the result of the
exercise initiated on the basis thereof, as he would be vitally interested
therein and hence, the obligations cast by law on the officer in-charge.
25. This Court assayed the courses open to the Magistrate on receipt of a
report by the police on the completion of the investigation. It was
enunciated that if the report submitted by the police divulged that no
offence had been committed, there again, the Magistrate would be left at
liberty to adopt one of the three courses, namely; he could accept the
report and drop the proceeding, or he could disagree with the report and
taking the view that there was sufficient ground for proceeding further,
take cognizance of the offence and issue process or he could direct further
investigation to be made by the police under sub-Section (3) of Section
156. Noticeably, these three courses referred to hereinabove are at the
pre-cognizance stage and can be opted for by the Magistrate depending on
his satisfaction on an assessment of the materials then on record.
26. Be that as it may, this Court held that whereas neither the informant
nor the injured nor the relative of the deceased in case of death, would be
prejudicially affected in case the Magistrate decides to take cognizance of
the offence and to issue a process, they would certainly be prejudiced in
case, the Court holds the view that there is no sufficient ground for
proceeding further and is inclined to drop the proceeding. Having regard to
the scheme of Sections 154, 157 and 173 in particular of the Cr.P.C and the
pattern of consequences to follow in the two contingencies referred to
herein above, this Court propounded that in case the Magistrate is not
inclined to take cognizance of the offence and issue process, the informant
must be given an opportunity of being heard so that he can make his
submissions to persuade the Magistrate to take cognizance of the offence
and issue process. Qua the requirement of issuance of such notice to the
injured person or to a relative of the deceased, in case of death, who
is/are not the informant(s) who had lodged the first information report, it
was elucidated that it would be open for the Magistrate in the exercise of
his discretion, if he thinks fit, to give such notice. However, the locus
standi of the injured person or any relative of the deceased, though not
entitled to notice on the Magistrate to apply for the Court at the time of
consideration of the report, if he/they otherwise come to know of such
stage of the proceeding, was recognized, so much so that in case he/they
would want to advance any submission with regard to the report, the
Magistrate would be bound to hear him/them as the case may be.
27. This verdict in re the issue presently involved is significant, so
far as it outlines the different modes of taking cognizance of an offence
by a Magistrate and also the procedures and powers available to him on the
submission of a police report following the completion of investigation.
This decision is pellucid in its statement that the Magistrate, on receipt
of the report, at that stage before taking cognizance of the offence
alleged, may direct further investigation under sub-Section (3) of Section
156 Cr.P.C. and require the police to make further report and that such
power can be exercised suo motu, contingent on its satisfaction of the
necessity thereof to espouse the cause of justice.
28. The question that fell for appraisal in Randhir Singh Rana
(supra) was as to whether a judicial Magistrate, after taking cognizance of
an offence, on the basis of a police report and after appearance of the
accused in pursuance of the process issued, can order of its own, further
investigation in the case. The significantly additional feature of this
query is the stage of the proceedings for directing further investigation
in the case i.e. after the appearance of the accused in pursuance of the
process already issued. This Court reiterated that such power was
available to the police, after submission of the charge-sheet as was
evident from Section 173(8) in Chapter XII of the Code, 1973. That it was
not in dispute as well that before taking cognizance of the offence under
Section 190 of Chapter XIV, the Magistrate could himself order
investigation as contemplated by Section 156(3) of the Code was noted as
well. This Court also noticed the power under Section 311 under Chapter
XXIV to summon any person as a witness at any stage of an inquiry/trial or
other proceedings, if the same appeared to be essential to the just
decision of the case.
29. It recalled its earlier rendering in Tula Ram and others v. Kishore
Singh, (1977) 4 SCC 459 to the effect that the Magistrate could order
investigation under Section 156(3) only at the pre-cognizance stage under
Sections 190, 200 and 204 Cr.P.C and that after he decides to take
cognizance under the provisions of Chapter XIV, he would not be entitled in
law to order any investigation under Section 156(3), and further though in
cases not falling within the proviso to Section 202, he could order such
investigation by the police, the same would be in the nature of an inquiry
only as contemplated by Section 202.
30. This Court also recounted its observations in Ram Lal Narang (supra)
to the effect that on the Magistrate taking cognizance upon a police
report, the right of the police to further investigate even under the 1898
Code was not exhausted and it could exercise such right often as necessary,
when fresh information would come to light. That this proposition was
integrated in explicit terms in sub-Section (8) of Section 173 of the new
Code, was noticed. The desirability of the police to ordinarily inform the
Court and seek its formal permission to make further investigation, when
fresh facts come to light, was stressed upon to maintain the independence
of the judiciary, the interest of the purity of administration of criminal
justice and the interest of the comity of the various agencies and
institutions entrusted with different stages of such dispensation.
31. The pronouncement of this Court in Devarapalli Lakshminarayana Reddy
and others v. V. Narayana Reddy and others, (1976) 3 SCC 252 emphasizing on
the distinction in the power to order police investigation under Section
156(3) and under Section 202(1) of the Cr.P.C, was referred to. It was
ruled that the two powers operate in separate distinct spheres at different
stages, the former being exercisable at the pre-cognizance stage and the
latter at the post-cognizance stage when the Magistrate is in seisin of the
case. It was underlined that in the case of a complaint regarding the
commission of a cognizable offence, the power under Section 156(3) could be
invoked by the Magistrate before he takes cognizance of the offence under
Section 190(1)(a), but once such cognizance is taken and he embarks upon
the procedure embodied in Chapter XV, he would not be competent to revert
to the pre-cognizance stage and avail Section 156(3). On the other hand,
it was observed that Section 202 would be invocable at a stage when some
evidence has been collected by the Magistrate in the proceedings under
Chapter XV, but is deemed to be insufficient to take a decision as to the
next step and in such an event, the Magistrate would be empowered under
Section 202 to direct, within the limits circumscribed by that provision,
an investigation for the purpose of deciding whether or not, there is
sufficient ground for proceeding. It was thus exposited that the object of
an investigation under Section 202 is not to initiate a fresh case on
police report but to assist the Magistrate in completing the proceedings
already instituted upon a complaint before him. It was thus concluded on an
appraisal of the curial postulations above referred to, that the Magistrate
of his own, cannot order further investigation after the accused had
entered appearance pursuant to a process issued to him subsequent to the
taking of the cognizance by him.
32. The scope of the judicial audit in Reeta Nag (supra), to reiterate,
was whether, after the charge-sheet had been filed by the investigating
agency under Section 173(2) Cr.P.C, and charge had been framed against some
of the accused persons on the basis thereof, and other co-accused had been
discharged, the Magistrate could direct the investigating agency to conduct
a re-investigation or further investigation under sub-Section (8) of
Section 173. The recorded facts revealed that the Magistrate had in the
contextual facts directed for re-investigation and to submit a report,
though prior thereto, he had taken cognizance of the offences involved
against six of the original sixteen accused persons, discharging the rest.
The informant had thereafter filed an application for re-investigation of
the case and the prayer was acceded to. This Court referred to its earlier
decisions in Sankatha Singh and others v. State of Uttar Pradesh, AIR 1962
SC 1208 and Master Construction Company (P) Ltd. v. State of Orissa and
another, AIR 1966 SC 1047 to the effect that after the Magistrate had
passed a final order framing charge against some of the accused persons, it
was no longer within his competence or jurisdiction to direct a re-
investigation into the case. The decision in Randhir Singh Rana (supra),
which propounded as well that after taking cognizance of an offence on the
basis of a police report and after the appearance of the accused, a
Magistrate cannot of its own order further investigation, though such an
order could be passed on the application of the investigating authority,
was recorded. It was reiterated with reference to the earlier
determination of this Court in Dinesh Dalmia v. CBI, (2007) 8 SCC 770 that
the power of the investigating officer to make a prayer for conducting
further investigation in terms of Section 173(8) of the Code was not taken
away only because a charge-sheet had been filed under Section 173(2) and a
further investigation was permissible even if cognizance had been taken by
the Magistrate. This Court, therefore summed up by enouncing that once a
charge-sheet was filed under Section 173(2) Cr.P.C and either charges have
been framed or the accused have been discharged, the Magistrate may on the
basis of a protest petition, take cognizance of the offence complained of
or on the application made by the investigating authority, permit further
investigation under Section 173(8), but he cannot suo motu direct a further
investigation or order a re-investigation into a case on account of the bar
of Section 167(2) of the Code. It was thus held that as the investigating
authority did not apply for further investigation and an application to
that effect had been filed by the defacto complainant under Section 173(8),
the order acceding to the said prayer was beyond the jurisdictional
competence of the Magistrate. It was, however observed, that a Magistrate
could, if deemed necessary, take recourse to the provisions of Section 319
Cr.P.C at the stage of trial.
33. This decision reinforces the view that after cognizance is taken by
the Magistrate on the basis of a report submitted by the police on the
completion of the investigation, no direction for further investigation can
be made by the Magistrate suo motu and it would be permissible only if such
a request is made by the investigating authority on the detection of fresh
facts having bearing on the case and necessitating further exploration
thereof in the interest of complete and fair trial.
34. The query in Vinay Tyagi v. Irshad Ali @ Deepak & Ors., (2013) 5 SCC
762 was whether in exercise of powers under Section 173 Cr.P.C, the Trial
Court has the jurisdiction to ignore any of the police reports, where there
was more than one, whether by the same or different investigating agencies
submitted in furtherance of the orders of a Court. The respondents therein
were sought to be prosecuted by filing a First Information Report under
Sections 120B, 121 and 122 of the IPC read with Section 25 of the Arms Act
and Sections 4 and 5 of Explosives Substance Act, 1908. The FIR was filed
by the Special Cell of Delhi Police, which the respondents alleged had been
lodged to falsely implicate them. Being aggrieved, the respondents
challenged this action before the High Court and inter alia prayed that the
investigation in the case be transferred to the CBI. As the High Court did
not, though it had issued notice in the writ petition, stay the
investigation, eventually the Special Cell of Delhi Police did file a
charge-sheet before the Trial Court. The High Court finally, while
disposing of the writ petition and being satisfied, directed the CBI to
undertake an inquiry into the matter and submit a report. Subsequent
thereto the CBI filed its report indicating in substance that the
recoveries, amongst others made from the respondents in course of the
inquisition made by the Special Cell of Delhi Police did not inspire
confidence and that further investigation was needed.
35. The CBI, after detailed investigation, submitted a closure report,
whereafter one of the respondents filed an application before the Trial
Court seeking discharge. This prayer was declined by the Trial Court as pre-
matured, observing that no definite conclusion could be drawn at that stage
to ascertain the truthfulness of the version of the two different agencies.
The High Court, being approached under Section 482 of the Cr.P.C by one of
the respondents, seeking to quash the First Information Report, it disposed
of the same by holding that once the report had been filed by the CBI, it
ought to be construed as a investigating agency, and thus its closure
report should be considered by the Trial Court and thus remanded the case
by observing that in undertaking the exercise, as directed, the Trial Court
should not be influenced by the report of the Special Cell of Delhi Police.
This order formed the subject matter of challenge before this Court.
36. After referring to Section 156(3) in particular and Section 190
Cr.P.C, this Court reverted to Section 173 and ruled that a very wide power
was vested in the investigating agency to conduct further investigation
after it had filed its report in terms of sub-Section (2) thereof. It held
on an elucidation of the contents of Section 173(8) that the investigating
agency was thus competent to file a report supplementary to its primary
report and that the former was to be treated by the Court in continuation
of the latter, and that on an examination thereof and following the
application of mind, it ought to proceed to hear the case in the manner
prescribed. It was elaborated that after taking cognizance of the offence,
the next step was to frame charge in terms of Section 228 of the Code
unless the Court found, upon consideration of the record of the case and
the documents submitted therewith, that there did exist no sufficient
ground to proceed against the accused, in which case it would discharge
him on reasons to be recorded in terms of Section 227 of the Code.
Alluding to the text of Section 228 of the Code which is to the effect that
if a Judge is of the opinion that there is ground for presuming that the
accused had committed an offence, he could frame a charge and try him,
this Court propounded that the word “presuming” did imply that the opinion
was to be formed on the basis of the records of the case and the documents
submitted therewith along with the plea of the defence to a limited extent,
if offered at that stage. The view of this Court in Amit Kapoor v. Ramesh
Chander and another, (2012) 9 SCC 460 underlining the obligation of the
Court to consider the record of the case and the documents submitted
therewith to form an opinion as to whether there did exist or not any
sufficient ground to proceed against an accused was underlined. This aspect
was dilated upon logically to respond to the query in the contextual facts
as to whether both the reports submitted by the Special Cell of the
Delhi Police and the CBI were required to be taken note of by the Trial
Court.
37. Additionally, this Court also dwelt upon the three facets of
investigation in succession i.e. (i) initial investigation (ii) further
investigation and (iii) fresh or de novo or reinvestigation. Whereas
initial investigation was alluded to be one conducted in furtherance of
registration of an FIR leading to a final report under Section 173(2) of
the Code, further investigation was a phenomenon where the investigating
officer would obtain further oral or documentary evidence after the final
report had already been submitted, so much so that the report on the basis
of the subsequent disclosures/discoveries by way of such evidence would be
in consolidation and in continuation of the previous investigation and the
report yielded thereby. “Fresh investigation” “reinvestigation” “de novo
investigation”, however is an exercise, which it was held, could neither be
undertaken by the investigating agency suo motu nor could be ordered by the
Magistrate and that it was essentially within the domain of the higher
judiciary to direct the same and that too under limited compelling
circumstances warranting such probe to ensure a just and fair investigation
and trial. Adverting to Section 173 of the Code again, this Court recalled
its observations in State of Punjab v. CBI and others, (2011) 9 SCC 182
that not only the police had the power to conduct further investigation in
terms of Section 173(8) of the Code, even the Trial Court could direct
further investigation in contradistinction to fresh investigation even
where the report had been filed.
38. The decisions in Minu Kumari and another v. State of Bihar and
others, (2006) 4 SCC 359 and Hemant Dhasmana v. CBI and another, (2001) 7
SCC 536 to the effect that a Court could order further investigation under
Section 173(8) of the Code even after a report had been submitted under
Section 173 (2) thereof, was adverted to.
39. Noticeably, none of these decisions, however pertain to a situation
where after the final report had been submitted, cognizance had been taken,
accused had appeared and trial is underway, the Court either suo motu or on
the prayer of the informant had directed further investigation under
Section 173(8) in absence of a request to that effect made by the concerned
investigating officer.
40. The rendition in Bhagwant Singh (supra) was also relied upon. It was
eventually held, by drawing sustenance from the pronouncement in Bhagwant
Singh (supra) that a Magistrate before whom a report under Section 173(2)
of the Code had been filed, was empowered in law to direct further
investigation and require the police to submit a further or a supplementary
report. To reiterate, in Bhagwant Singh (supra), this Court had in
particular dealt with the courses open to a Magistrate, once a charge-sheet
or a closure report is submitted on the completion of investigation under
Section 173(2) of the Code and thus did essentially concentrate at the pre-
cognizance stage of the proceedings.
41. From the issues sought to be answered in this decision and having
regard to the overall text thereof, it is not possible to discern that the
power of the Magistrate, even at the post cognizance stage or after the
accused had appeared in response to the process issued, the suo motu power
of the Magistrate to direct further investigation was intended to be
expounded thereby. Significantly, the adjudication was essentially related
to the pre-cognizance stage.
42. In Chandra Babu alias Moses v. State through Inspector of Police and
others, (2015) 8 SCC 774, the appellant had filed a FIR with the
Kulasckaram Police Station against the respondents-accused alleging
unlawful assembly and assault resulting in multiple injuries. After the
initial investigation, the same was transferred to the District Crime
Branch Police, Kanyakumari which eventually filed a final report in favour
of the respondents-accused, which was accepted by the learned Magistrate.
Meanwhile, however the appellant/informant filed a protest petition before
the Magistrate praying for a direction to the CBCID to reopen the case and
file a fresh report. As before any decision on this protest petition, the
final report filed by the police had already been accepted, the appellant
approached the High Court, which called for the report from the learned
Magistrate and finally interfered with the order accepting the final report
and directed the Magistrate to consider the same along with the protest
petition. The Magistrate next held that there was no justification for
ordering reinvestigation of the case and directed that the protest petition
be treated as a separate private complaint.
43. This order being challenged again before the High Court, the matter
was remanded to the learned Magistrate with a direction to consider the
final report and the other materials on record and pass appropriate orders
after hearing both the public prosecutor and the de facto complainant. This
time, the learned Magistrate returned a finding that the investigation by
the District Crime Branch was a biased one and that the final report was
not acceptable and consequently forwarded the complaint for further
investigation by the CBCID, which was a different investigating agency. The
matter was taken to the High Court by one of the respondents/accused,
whereupon it annulled the direction of the learned Magistrate for
reinvestigation, holding that not only there were material discrepancies in
the evidence brought on record, but also there was no exceptional
circumstance for such a course to be adopted by the Magistrate. It was also
of the view, having regard to the scheme of the Section 173(8) of the Code
that the investigating officer only could request for further
investigation.
44. While disapproving the approach of the High Court in reappreciating
the facts in the exercise of its revisional jurisdiction, this Court
adverting, amongst others to the three Judge Bench exposition in Bhagwant
Singh (supra) reiterated that a Magistrate could disagree with the police
report and take cognizance and issue process and summon the accused, if
satisfied as deemed fit in the attendant facts and circumstances. The
rendition in Vinay Tyagi (supra) was also alluded to. It was ultimately
expounded that the learned Magistrate had really intended to direct further
investigation, but as a different investigating agency had been chosen, the
word re-investigation had been used. This Court thus construed the
direction for investigation by the CBI to be one for further investigation
and upheld the same, but nullified the selection of a new investigating
agency therefor. As a corollary, the investigating agency that had
investigated the case earlier and had submitted the final report, was
directed by this Court to undertake further investigation to be supervised
by the Superintendent of Police and to submit a report before the learned
Chief Judicial Magistrate to be dealt with in accordance with law.
45. This decision too was concerned with a fact situation, pertaining to
the pre-cognizance stage of the proceedings before the learned Magistrate
and therefore, does not, in our comprehension, further the case of the
appellant.
46. As adumbrated hereinabove, Chapter XIV of the Code delineates the
conditions requisite for initiation of proceedings before a Magistrate.
Section 190, which deals with cognizance of offences by Magistrate, sets
out that any Magistrate of the first Class and any Magistrate of the second
class specially empowered, as contemplated, may take cognizance of any
offence either upon receiving a complaint of facts which constitute such
offence or upon a police report of such facts or upon information received
from any person other than the police officer, or upon his own knowledge
that such offence had been committed. Section 156, which equips a police
officer with the power to investigate a cognizable case mandates vide sub-
section 3 thereof that any Magistrate empowered under Section 190 may order
such an investigation. The procedure for dealing with complaints to
Magistrate is lodged under Chapter XV of the Code. Section 202 appearing
therein predicates that any Magistrate on receipt of a complaint of an
offence of which he is authorized to take cognizance or which had been made
over to him under Section 192, may, if he thinks fit and shall in a case
where the accused is residing at a place beyond the area in which he
exercises his jurisdiction, postpone the issue of process against the
accused and either enquire into the case himself or direct an investigation
to be made by a police officer or by such other person as he thinks fit
for the purpose of deciding whether or not there is sufficient ground for
proceeding. The contents of this text of Section 202(1) of the Code
unmistakeably attest that the investigation that can be directed by the
Magistrate, to be undertaken by a police officer would essentially be in
the form of an enquiry for the singular purpose of enabling him to decide
whether or another there is sufficient ground for proceeding with the
complaint of an offence, of which he is authorised to take cognizance.
This irrefutably is at the pre-cognizance stage and thus logically before
the issuance of process to the accused and his attendance in response
thereto. As adverted to hereinabove, whereas Section 311 of the Code
empowers a Court at any stage of any inquiry, trial or other proceeding, to
summon any person as a witness, or examine any person in attendance,
though not summoned as a witness, or recall and re-examine any person
already examined, if construed to be essential to be just decision of the
case, Section 319 authorizes a Court to proceed against any person, who
though not made an accused appears, in course of the inquiry or trial, to
have committed the same and can be tried together. These two provisions of
the Code explicitly accoutre a Court to summon a material witness or
examine a person present at any stage of any inquiry, trial or other
proceeding, if it considers it to be essential to the just decision of the
case and even proceed against any person, though not an accused in such
enquiry or trial, if it appears from the evidence available that he had
committed an offence and that he can be tried together with the other
accused persons.
47. On an overall survey of the pronouncements of this Court on the scope
and purport of Section 173(8) of the Code and the consistent trend of
explication thereof, we are thus disposed to hold that though the
investigating agency concerned has been invested with the power to
undertake further investigation desirably after informing the Court
thereof, before which it had submitted its report and obtaining its
approval, no such power is available therefor to the learned Magistrate
after cognizance has been taken on the basis of the earlier report, process
has been issued and accused has entered appearance in response thereto. At
that stage, neither the learned Magistrate suo motu nor on an application
filed by the complainant/informant direct further investigation. Such a
course would be open only on the request of the investigating agency and
that too, in circumstances warranting further investigation on the
detection of material evidence only to secure fair investigation and trial,
the life purpose of the adjudication in hand.
48. The un-amended and the amended sub-Section (8) of Section 173 of the
Code if read in juxtaposition, would overwhelmingly attest that by the
latter, the investigating agency/officer alone has been authorized to
conduct further investigation without limiting the stage of the proceedings
relatable thereto. This power qua the investigating agency/officer is thus
legislatively intended to be available at any stage of the proceedings. The
recommendation of the Law Commission in its 41st Report which manifesting
heralded the amendment, significantly had limited its proposal to the
empowerment of the investigating agency alone.
49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the
Cr.P.C clearly outline the powers of the Magistrate and the courses open
for him to chart in the matter of directing investigation, taking of
cognizance, framing of charge, etc. Though the Magistrate has the power to
direct investigation under Section 156(3) at the pre-cognizance stage even
after a charge-sheet or a closure report is submitted, once cognizance is
taken and the accused person appears pursuant thereto, he would be bereft
of any competence to direct further investigation either suo motu or acting
on the request or prayer of the complainant/informant. The direction for
investigation by the Magistrate under Section 202, while dealing with a
complaint, though is at a post-cognizance stage, it is in the nature of an
inquiry to derive satisfaction as to whether the proceedings initiated
ought to be furthered or not. Such a direction for investigation is not in
the nature of further investigation, as contemplated under Section 173(8)
of the Code. If the power of the Magistrate, in such a scheme envisaged by
the Cr.P.C to order further investigation even after the cognizance is
taken, accused persons appear and charge is framed, is acknowledged or
approved, the same would be discordant with the state of law, as enunciated
by this Court and also the relevant layout of the Cr.P.C. adumbrated
hereinabove. Additionally had it been the intention of the legislature to
invest such a power, in our estimate, Section 173(8) of the Cr.P.C would
have been worded accordingly to accommodate and ordain the same having
regard to the backdrop of the incorporation thereof. In a way, in view of
the three options open to the Magistrate, after a report is submitted by
the police on completion of the investigation, as has been amongst
authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in
both the contingencies, namely; when he takes cognizance of the offence or
discharges the accused, would be committed to a course, whereafter though
the investigating agency may for good reasons inform him and seek his
permission to conduct further investigation, he suo motu cannot embark upon
such a step or take that initiative on the request or prayer made by the
complainant/informant. Not only such power to the Magistrate to direct
further investigation suo motu or on the request or prayer of the
complainant/informant after cognizance is taken and the accused person
appears, pursuant to the process, issued or is discharged is incompatible
with the statutory design and dispensation, it would even otherwise render
the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can
be summoned by a Court and a person can be issued notice to stand trial at
any stage, in a way redundant. Axiomatically, thus the impugned decision
annulling the direction of the learned Magistrate for further investigation
is unexceptional and does not merit any interference. Even otherwise on
facts, having regard to the progression of the developments in the trial,
and more particularly, the delay on the part of the informant in making the
request for further investigation, it was otherwise not entertainable as
has been rightly held by the High Court.
50. In the result, the appeal, being devoid of any merit, fails and is
dismissed.

.............................................J.
(DIPAK MISRA)

…...........................................J.
(AMITAVA ROY)
NEW DELHI;
FEBRUARY 02, 2017.

Wednesday, February 1, 2017

Sections 3, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987(hereinafter referred to as ‘Act’) apart from the offences punishable under Section 120 B, 121, 122 B, 123 r/w 34 of IPC, Sections Section 25 (1A), (1B) and 25(1AA) of the Arms Act and Section 9-B of the Explosives Act, Sections 3, 4, 5, 6 and 9 of the Explosive Substances Act.= As per the law declared by this Court, Section 20A is mandatory and any violation of the procedure prescribed therein would vitiate the entire proceedings with respect to the TADA offences. This Court in Izharul Haq Abdul Hamid Shaikh v. State of Gujarat reported in (2009) 5 SCC 283 released the Appellant therein on bail on the ground that Section 20A (1) was violated. Without expressing any opinion on the merits of the matter, we are of the opinion that the Appellant is entitled to be released on bail only on the ground that the FIR was registered on 16.07.1993 in violation of the procedure prescribed under Section 20A (1) of the TADA Act. There is no dispute about the fact that the Appellant has been in jail for more than 12 years and charges are not framed till date which itself is a ground for bail. (See: Sanghian Pandian Rajkumar v C.B.I (2014)4 SCALE 74; Bal Krishna Pandey Alias Vidur V State of U.P. (2003)12SCC186; Dipak Shubhashchandra Mehta v. CBI, (2012) 4 SCC 134) Taking note of the above and the fact that the Appellant has been granted bail by this court in Criminal Appeal No. 1650 of 2011, we grant relief of bail to the Appellant subject to the following conditions:

[pic]Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1702 of 2011

UMARMIYA ISMAILMIYA SAIYED @ MAMUMIYA PANJU MIYA.
.... Appellant
Versus
STATE OF GUJARAT
….Respondent

J U D G M E N T

L. NAGESWARA RAO, J.
The Court of Designated Judge (TADA) at Jamnagar (hereinafter
referred to as the ‘Designated Court’) dismissed the bail application of
the Appellant by a Judgment dated 31.08.2010 aggrieved by which the
Appellant has filed this Criminal Appeal.
FIR No.I-151 of 1993 was registered in Jamnagar City “B” Division Police
Station under Sections 3, 4 and 5 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987(hereinafter referred to as ‘Act’) apart
from the offences punishable under Section 120 B, 121, 122 B, 123 r/w 34 of
IPC, Sections Section 25 (1A), (1B) and 25(1AA) of the Arms Act and Section
9-B of the Explosives Act, Sections 3, 4, 5, 6 and 9 of the Explosive
Substances Act.
The case of the prosecution is that after demolition of the Babri Masjid in
the year 1992, a conspiracy was hatched at Dubai for smuggling of
contraband goods, arms and explosives to the sea cost of Gosa Bara near
Porbandar. Harun Adam Sanghar, Usman Umar Koreja and others were arrested
on the basis of information received by the police. On the basis of their
statements, FIR was registered in Jamnagar City “B” Division Police Station
vide crime register No.151 of 1993. The Appellant masterminded the
conspiracy for smuggling a large quantity of arms and ammunition. After
supervising the landing of the ammunition, the Appellant absconded and was
arrested on 12.01.2005.
The Appellant filed Criminal Misc (Bail) application No. 380 of 2010 on the
ground that a prima facie case was not made out against him and prior
approval was not taken from the District Superintendent of Police under
Section 20A (1) of the Act which vitiated the entire proceedings. The
Appellant submitted before the Designated Court that a co-accused Usman
Gani Noor Mohamad Merchant alias Munna was granted bail on 13.03.1996 on
the ground of violation of Section 20A (1) of the Act, which was confirmed
by this Court by an order dated 30.04.1996 in SLP(Crl.) No. 981/96.
The Designated Court dismissed the bail application by an order dated
31.08.2010 on the ground that the Appellant was involved in serious
offences and his enlargement on bail would be detrimental to the interest
of the society.
The principal contention of Mr. Sushil Kumar, learned Senior Counsel,
appearing for the Appellant is that no prior approval of the District
Superintendent of Police was taken under Section 20A (1) of the TADA Act
before recording the FIR. He relied upon the judgments of this Court in
Izharul Haq Abdul Hamid Shaikh v. State of Gujarat (2009) 5 SCC 283,
Ashrafkhan v. State of Gujarat (2012) 11 SCC 606 and Hussein Ghadially v.
State of Gujarat (2014) 8 SCC 425. The Counsel further submitted that the
Appellant is entitled to be released on bail. He further submitted that
the FIR was registered on 16.07.1993 and after a lapse of more than 23
years charges have not been framed till date.
Mr.Yashank Adhyaru, learned Senior Counsel appearing for the Respondent-
State of Gujarat submitted that the Appellant is not entitled for being
released on bail in view of his involvement in serious offences under TADA,
IPC, Arms Act, Explosives Act and Explosive Substances Act. He further
submitted that the Appellant absconded for a period of 10 years and in the
event of his being released on bail, there is every likelihood of his
fleeing from justice. He also expressed his apprehension that the
Appellant would indulge in tampering with the evidence and witnesses which
would result in obstruction of justice. Mr.Adhyaru justified the delay in
the framing of charges on the ground that the record has been lying in this
Court for the past five years.
We have considered the submissions made by the counsels appearing for the
parties. As per the law declared by this Court, Section 20A is mandatory
and any violation of the procedure prescribed therein would vitiate the
entire proceedings with respect to the TADA offences. This Court in
Izharul Haq Abdul Hamid Shaikh v. State of Gujarat reported in (2009) 5 SCC
283 released the Appellant therein on bail on the ground that Section 20A
(1) was violated.
Without expressing any opinion on the merits of the matter, we are of the
opinion that the Appellant is entitled to be released on bail only on the
ground that the FIR was registered on 16.07.1993 in violation of the
procedure prescribed under Section 20A (1) of the TADA Act. There is no
dispute about the fact that the Appellant has been in jail for more than 12
years and charges are not framed till date which itself is a ground for
bail. (See: Sanghian Pandian Rajkumar v C.B.I (2014)4 SCALE 74; Bal Krishna
Pandey Alias Vidur V State of U.P. (2003)12SCC186; Dipak Shubhashchandra
Mehta v. CBI, (2012) 4 SCC 134)

Taking note of the above and the fact that the Appellant has been granted
bail by this court in Criminal Appeal No. 1650 of 2011, we grant relief of
bail to the Appellant subject to the following conditions:

The Appellant will furnish a bail bond in the sum of Rs.1 lakh (One Lakh
only) with one surety for a similar amount.

The Appellant will reside at Porbandar and report daily to the City ‘B’
Division Police Station, Porbandar at 6:00PM. He shall not leave the
territory of Porbandar.

Whenever the Appellant is required to attend proceedings before the
Designated Court for the purposes of Special TADA case No. 2 of 2005
arising from C.R. No.II-151/93 received at Jamnagar City “B” Division
Police Station dated 16.07.93, the Appellant’s attendance may be secured
through video conferencing which has to be organized by the State. If
video conferencing cannot be arranged, the Appellant will be produced
before the Designated Court or any other court, if necessary, through
Escort by the Police.

The Passport of the Appellant shall be surrendered before the Court of
Designated Judge (TADA) at Porbandar.

The Appellant shall not indulge in tampering of evidence and influencing of
witnesses.

The State is at liberty to move for cancellation of bail, if the Appellant
is found to be tampering with the evidence or causing hindrance to the
progress of the trial.

The Registry is directed to transmit the record to the Designated Court
immediately. The Designated Court is directed to frame charges at the
earliest and dispose of the matter expeditiously. With the above
directions, the Appeal is allowed.

........................................J
[S. A. BOBDE]

..……................................J
[L. NAGESWARA RAO]

New Delhi,
February 01, 2017

-----------------------
6

the entire proceedings are vitiated due to no prior approval being taken from the District Superintendent of Police under Section 20A (1) of the TADA Act before registration of First Information Report. He further submitted that 192 witnesses have been cited out of whom only 25 witnesses have been examined so far and there is no likelihood of the completion of the trial in the near future. He also stated that many of the other accused have either been released on bail or had the benefit of the proceedings against them being quashed. He pleaded for grant of bail in view of his long incarceration for more than 12 years. To buttress his submission the counsel relied upon the judgments of this Court in Izharul Haq Abdul Hamid Shaikh v. State of Gujarat (2009) 5 SCC 283, Ashrafkhan v. State of Gujarat (2012) 11 SCC 606 and Hussein Ghadially v. State of Gujarat (2014) 8 SCC 425.=Though the Appellant is involved in serious offences and has absconded for a period of 10 years before he was arrested in 2004, we see no reason to confine him to jail as he has already suffered more than 12 years in custody and the trial may not be completed in the near future. Taking note of the above, we grant relief of bail to the Appellant subject to the following conditions:

[pic]Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1650 of 2011

UMARMIA ALIAS MAMUMIA
.... Appellant(s)
Versus
STATE OF GUJARAT
….Respondent

J U D G M E N T

L. NAGESWARA RAO, J.
This Appeal is filed against the Judgment dated 16.06.2010 in
Criminal Misc Sr. No.44 of 2010 by which the Court of Designated Judge
(TADA) at Porbandar (hereinafter referred to as the ‘Designated Court’)
rejected the bail application filed by the Appellant under Section 439
Cr.P.C. and Section 20 (8) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as the ‘Act’).
Crime No. I-43 of 1994 was registered under Section 154 Cr.P.C. for
offences committed under Section 121, 121A, 122, 123, 124B r/w 34 of the
Indian Penal Code, Section 25 (1A), (1B) and 25(1AA) of the Arms Act,
Sections 9-B of the Explosives Act, Sections 3, 4, 5 and 6 of the Explosive
Substances Act and Sections 3, 4 and 5 of the Act. The statement of one
Suresh recorded under Section 108 of the Customs Act revealed that
explosive substances, powder RDX boxes, bags containing fire arms, 45 bags
of weapons, 15 boxes of RDX and 225 pieces of silver ingots were smuggled
into the country and taken to Zaroli and Dhanoli villages of Valsad
District. The first charge-sheet was filed on 12.01.1995 in which the name
of the Appellant is found at serial No.1 in column No.2 which refers to
persons who were absconding. The 11th supplementary Charge-sheet was filed
on 06.06.2005 wherein it was mentioned the Appellant was arrested at 1700
hrs on 10.12.2004.
The involvement of the Appellant in the crime was set out in detail in the
charge-sheet dated 06.06.2005. The Appellant conspired with Iqbal A Hussain
and others sent by Mustapha Majnu Sheikh from Mumbai at his residence at
Memonwada, Porbandar and finalized the plan to unload the ammunition. It
was mentioned, inter alia, that the Appellant was present at the time of
delivery of RDX, weapons etc. and he supervised the transport of some
weapons to his house. The rest of the material was loaded in three tempos
and was sent to Ghanoli village. Thereafter the Appellant fled away to
Dubai.
On 17.12.2010 the Appellant filed Criminal Misc. Application No.44 of 2010
in TADA case No. 3 of 2005 in the Designated Court seeking bail under
Section 439 Cr.P.C. read with Section 20 (8) of Act. The Designated Court
by its judgment dated 16.06.2010 dismissed the bail application and held
that on perusal of the material on record, a prima facie case of
Appellant’s involvement in serious offences under TADA was made out. The
Designated Court refused to release the Appellant on bail after examining
his confessional statement recorded under Section 15(2) TADA. The Court
also took note of the fact that the Appellant absconded for 10 years from
08.03.1994 to 10.12.2004. Likelihood of tampering of evidence and witnesses
being influenced were also grounds which were taken into consideration by
the Designated Court to deny bail. The Appellant filed this appeal
challenging the validity of the said judgment dated 16.06.2010 of the
Designated Court.
Mr. Sushil Kumar, learned Senior Counsel appearing for the Appellant
submitted that the entire proceedings are vitiated due to no prior approval
being taken from the District Superintendent of Police under Section 20A
(1) of the TADA Act before registration of First Information Report. He
further submitted that 192 witnesses have been cited out of whom only 25
witnesses have been examined so far and there is no likelihood of the
completion of the trial in the near future. He also stated that many of
the other accused have either been released on bail or had the benefit of
the proceedings against them being quashed. He pleaded for grant of bail
in view of his long incarceration for more than 12 years. To buttress his
submission the counsel relied upon the judgments of this Court in Izharul
Haq Abdul Hamid Shaikh v. State of Gujarat (2009) 5 SCC 283, Ashrafkhan v.
State of Gujarat (2012) 11 SCC 606 and Hussein Ghadially v. State of
Gujarat (2014) 8 SCC 425.
Mr. Yashank Adhyaru, learned Senior Counsel appearing for the Respondent-
State of Gujarat made an attempt to convince us that sanction was, in fact,
granted under Section 20A (1). According to him, there was an error in the
order dated 08.04.1994 which mentioned that approval was granted under
Section 20A (2). He submitted that a plain reading of the said order would
disclose that the approval was actually granted under Section 20A (1). He
urged that the Appellant is the master mind of the conspiracy which
resulted in smuggling of large scale arms and ammunition into the country.
He submitted that there is every likelihood of the Appellant fleeing
justice, if released on bail.
Section 20-A of the Act reads as under:
“20-A. Cognizance of offence.—
(1) Notwithstanding anything contained in the Code, no information about
the commission of an offence under this Act shall be recorded by the police
without the prior approval of the District Superintendent of Police.
(2) No court shall take cognizance of any offence under this Act without
the previous sanction of the Inspector General of Police, or as the case
may be, the Commissioner of Police.”

In Izharul Haq Abdul Hamid Shaikh’s case (Supra) this Court granted bail to
the Appellant therein. In the said case also the FIR was registered on
08.03.1994 relating to the smuggling of arms and ammunition at Porbandar.
This Court held that prior approval under Section 20A (1) of the Act was a
sine qua non for recording of First Information Report. The Appellant
therein was granted relief on the ground that prior approval was not
obtained before recording the FIR. The submission of Mr. Sushil Kumar, who
appeared for the Appellant in that case, that prior approval under Section
20A (1) was not accorded by the competent authority was accepted by Mr.
Adhyaru who appeared for the State of Gujarat in that case. Mr.Adhyaru’s
submission in Izharul Haq Abdul Hamid Shaikh’s case that though the order
of approval wrongly mentioned Section 20A(2) it was actually an order under
Section 20A(1), was not accepted. Mr. Adhyaru raised the same point again
before us relying on order dated 08.03.1994. We permitted the Senior
Counsel to read out the order dated 08.03.1994 but we are not convinced
that it was passed under Section 20A(1) and not under Section 20A(2).
It is no more res integra that infraction of Section 20A (1) of the
TADA Act would vitiate the entire proceedings and result in acquittal of
the accused for offences under the Act. (See: Anirudhsinhji Karansinhji
Jadeja v. State of Gujarat, (1995) 5 SCC 302; Prakash Kumar v. State of
Gujarat, (2005) 2 SCC 409; Izharul Haq Abdul Hamid Shaikh v. State of
Gujarat, (2009) 5 SCC 283; Ashrafkhan v. State of Gujarat, (2012) 11 SCC
606; Hussein Ghadially v. State of Gujarat, (2014) 8 SCC 425)

After considering the submissions of both sides, we are of the opinion that
the Appellant is entitled to be released on bail for the following reasons:

The prior approval required under Section 20A (1) of the TADA Act was not
taken from the District Superintendent of Police before the FIR was
recorded.
Admittedly, the Appellant had been suffering incarceration for more than 12
years.
Only 25 out of 192 witnesses have been examined so far.
There is no likelihood of the completion of trial in the near future.
Though there is a confessional statement of the Appellant recorded under
Section 15 of the TADA, the same cannot be looked into by us in view of the
violation of Section 20A (1) of the TADA Act.

This Court has consistently recognised the right of the accused for a
speedy trial. Delay in criminal trial has been held to be in violation of
the right guaranteed to an accused under Article 21 of the Constitution of
India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6
SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616)
Accused, even in cases under TADA, have been released on bail on the ground
that they have been in jail for a long period of time and there was no
likelihood of the completion of the trial at the earliest. (See: Paramjit
Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of
Maharashtra, (2005) 11 SCC 569).

Though the Appellant is involved in serious offences and has absconded for
a period of 10 years before he was arrested in 2004, we see no reason to
confine him to jail as he has already suffered more than 12 years in
custody and the trial may not be completed in the near future. Taking note
of the above, we grant relief of bail to the Appellant subject to the
following conditions:

The Appellant will furnish a bail bond in the sum of Rs.1 lakh (One Lakh
only) with one surety for a similar amount.

The Appellant will reside at Porbandar and report daily to the City ‘B’
Division Police Station, Porbandar at 6:00 PM. He shall not leave the
territory of Porbandar.

If the Appellant is required to attend any Court outside Porbandar the same
may be done through video conferencing to be organized by the State. If
video conferencing cannot be arranged the Appellant will be produced before
any court, if necessary, through Escort by the Police.

The Passport of the Appellant shall be surrendered before the Designated
Court.

The Appellant shall not indulge in tampering of evidence and influencing of
witnesses.

The State is at liberty to move for cancellation of bail, if the Appellant
is found to be tampering with the evidence or causing hindrance to the
progress of the trial.

As the case pertains to the year 1993, the Designated Court is requested to
expedite and complete the trial at the earliest. With the above
directions, the Appeal is allowed.

.........................................J
[S. A. BOBDE]

...……................................J
[L. NAGESWARA RAO]

New Delhi,
February 01, 2017

-----------------------
10

whether the Accused can be convicted for an offence under section 302 with the aid of Section 149 IPC.=Though the accused cannot be convicted under section 302 with the aid of S. 149 IPC in view of the above findings, they would still be liable for a lesser punishment. The common object of the unlawful assembly to attack the Appellant and others is proved. Considering the manner of the attack and the deadly weapons used, we are of the considered opinion that Accused Valerbhai Deganbhai Vagh (A-1), Unadbhai Deganbhai Vagh (A-2), Bhimabhai Deganbhai Vagh (A-3), Unadbhai Bhagabhai Vagh (A-5), Bhagwanbhai Bhikabhai Vagh (A-7), Bhikabhai Jinabhai Vagh (A-8), Hasurbhai Bhikhabhai Vagh (A- 11), Bhanabhai Bhikabhai Vagh (A-12), Patabhai @ Aatabhai Bhikabhai Vagh (A- 13) and Bhavabhai Jikarbhai Vagh (A-14) are guilty of offence under Section 326 read with 149 IPC. We are informed that the accused have already undergone a sentence of seven and a half years. Considering the fact that the incident occurred in the year 1998 and that there is no complaint from either side about any further violence since then we opine that the sentence can be limited to the period undergone.

[pic]REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 2339 of 2010

NAJABHAI DESURBHAI WAGH
.... Appellant(s)
Versus
VALERABHAI DEGANBHAI VAGH & ORS.
….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.
By a Judgment dated 24.06.2003, the Second Fast Track Judge, Amreli
convicted Accused Nos.1 to 14 who are Respondents 1 to 14 herein for
committing an offence under Section 302 read with Sections 149/34 IPC and
sentenced them to life imprisonment and a penalty of Rs.5,000/- in default
of which they shall undergo six months further imprisonment. The Accused
were also found guilty for the offences under Sections 324 and 325 read
with 149/34 IPC for which they were sentenced to six months rigorous
imprisonment and fine of Rs.1000/- in default of which they shall undergo
two months imprisonment. Accused Nos.1, 2 and 10 were directed to pay
Rs.10,000/- each as compensation to the heirs of the deceased Unadbhai
Desurbhai under Section 357 of the Criminal Procedure Code, 1973. The
remaining accused were directed to jointly pay Rs.20,000/-as compensation
to the heirs.
Accused Nos.1 to 14 filed an Appeal before the High Court of Gujarat at
Ahmedabad challenging their convictions and sentences. The High Court
allowed the appeal partly by acquitting Accused Nos.1 and 2 of the charge
under Section 302 read with Section 34/149 IPC. The convictions and
sentences under Section 324 and 325 read with Section 34/149 IPC in respect
of Accused Nos.1, 2 and 3 were maintained. The convictions and sentences
of Accused No. 3 to 9 and 11 to 14 under Section 302 read with Section
34/149 IPC and 324 and 325 read with Section 34/149 IPC were set aside.
The conviction of Accused No.10 under Section 302 read with Section 149/34
was converted to a conviction for the offence under Section 302 IPC
simpliciter and he was sentenced to undergo rigorous imprisonment for life.
The Complainant has filed this Appeal aggrieved by the judgment of the
High Court.
The FIR was recorded on 24.03.1998 by the Sub-Inspector of Police, Rajula
on a complaint made by the Appellant herein. According to the Complainant,
an electrical light pole near his house was broken down by the tractor of
Accused No.1 on 23.03.1998. The Complainant cautioned Accused No.1 to
drive the tractor carefully. Accused No.1 took offence and informed the
Complainant that he would come back at 06:00 PM to settle the matter. At
06:00 PM, Accused Nos.1 to 14, armed with axe, iron pipe and spear came on
a tractor to the Complainant’s house. Jagabhai Bhayabhai was hit by the
tractor due to which he sustained injury on his legs. The other accused
attacked the Complainant, his brother Unabhai Desurbhai, Jaga Bhaya and
Bayabhai. Bhagwan Bhikha (Accused No.7) gave a blow with an iron T pipe on
the left eyebrow of the complainant. Bhima Degan (Accused No. 3) inflicted
an injury by spear on the left side of the complainant’s stomach.
Bhagabhai Rambhai, Rambhai Bhayabhai, Lakhman Sumara and Raningbhai
Tapubhai came to the spot and they were also attacked by Accused No.1 to
14. Unadbhai Desurbhai, Bhikabhai Desurbhai, Bhaga Ram and Lakhman Sumara
sustained injuries on their heads. The Complainant and the other injured
persons shouted for help and the accused seeing the villagers fled from the
spot. The injured were taken for treatment in an ambulance of Gujarat
Peeparu Port Ltd. Unadbhai Desurbhai died on 26.03.1998 while undergoing
treatment. The accused were charged under Section 147, 148, 504, 506(2),
323, 324, 325, 326, 302 read with 34/149 IPC and 135 of the Bombay Police
Act.

In the trial, the prosecution examined 21 witnesses and relied upon several
documents. Seven eye-witnesses including the Complainant were examined. To
prove the injuries PWs 14, 15, 16 and 17 were examined. Dr. Popatbhai
Bhaliya (PW17) was the Medical Officer, Community Health Centre, Rajula on
24.03.98. He examined the Complainant, the deceased Unadbhai Desurbhai and
other injured persons. He proved the medical certificates given by him
regarding the injuries. Dr. Hemangbhai Vasavdawas who treated the deceased
was examined as PW15. He stated that the cause of death was due to
haemorrhage caused in the head by a solid blunt object. PW14 Dr.
Govindbhai Parmar, conducted the post mortem of the dead body of Unadbhai
Desurbhai. Dr. Madhukant (PW16) was examined to speak about the injuries
caused to Rainingbhai Tapu (PW5). Relying upon the ocular testimonies
which were corroborated by the medical evidence, the Trial Court held that
the accused formed an unlawful assembly and attacked the Complainant and
others. The right to private defence set up by the accused was rejected by
the Trial Court. On a detailed consideration of the material on record,
the Trial Court found all the Accused guilty of having committed the
offence under Section 302 read with 149/34 IPC for the death of Unadbhai
Desurbhai. The Accused were also found guilty of causing injuries to the
others and were convicted under Section 324 and 325 read with 149/34 IPC.

The High Court held that the offence under Section 302 read with 149/34 IPC
was not made out on the ground that there was a cross case and that the
Accused neither formed an unlawful assembly nor was there previous concert
to cause death. The High Court held that there was one injury on the head
of the deceased Unadbhai Desurbhai and Accused Nos.1, 2 and 10 were alleged
to have caused the injury. As that injury on the head can be attributed to
Accused No.10, he was convicted under Section 302 IPC. The High Court held
that Accused No.1 and 2 cannot be held responsible for the said injury and
acquitted them of the offence under Section 302 read with 149/34 IPC. The
remaining accused were also acquitted for the offence under Section 302
read with 149/34 IPC. The conviction and sentence under Section 324, 325
read with 149/34 IPC were maintained.

Lakshmanbhai Bhaikhabhai, Accused No.10 did not prefer any appeal against
his conviction and sentence. We are informed that he has served his
sentence. We are also informed that during the pendency of the appeal
before the High Court, Accused Nos.4, 6 and 9 have died against whom the
Appeal abates.

Ms.Meenakshi Arora, learned Senior Counsel, appearing for the Appellant
submitted that the High Court committed a serious error in acquitting the
Accused under Section 302 read with 149 IPC in the facts and circumstances
of the case. She submitted that the judgment of the High Court was cryptic
and reasons given for the acquittal of the Accused are unsustainable. The
finding of the High Court that there was no previous concert to cause death
and there was no unlawful assembly is without reference to the facts of the
case.

Mr. Harin Rawal, learned Senior Counsel, appearing for the Accused
submitted that the prosecution suppressed the true facts. He contended that
the Complainant’s party were the aggressors in the fight that took place on
24.03.1998. He brought to our notice that Crime No.I 35 of 1998 was lodged
at 08:30 pm on 24.03.1998 at Rajula Police Station by Accused No.2. The
complaint preferred by the Appellant was lodged 15 minutes after their
complaint. He took us through the record to show that there were injuries
received by the Accused due to the attack by the Complainant’s party. He
further submitted that the lights of the tractor were broken, its silencer
was bent and its steering wheel was damaged. He highlighted the
discrepancy on the question of who was driving the tractor. He referred to
the evidence to show that Prakash Manubhai was the driver who was injured.

Whether the High Court was right in acquitting the accused under Section
302 read with 149 IPC is the question that falls for our consideration in
this case. The essential ingredients and the width and amplitude of
Section 149 as well as its applicability to the facts of the case have to
be examined. It would be relevant to refer to Section 149 IPC which is as
under:

“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.”

A Full Bench of the Calcutta High Court analysed Section 149 IPC in the
year 1873 in Queen v. Sabid Ali[1]. Phear, J., speaking for the majority,
held as under:
“ It seems to me clearly not the case that every offence which may be
committed by one member of an unlawful assembly while the assembly is
existing, i.e., while the members are engaged in the prosecution of a
common object, is attributed by Section 149 to every other member. The
Section describes the offence which is to be so attributed, under two
alternative forms, viz., it must be either –

1st. – An offence committed by a member of the unlawful assembly in
prosecution of the common object of that assembly.

2nd. – An offence such as the members of that assembly knew to be likely to
be committed in prosecution of that object.

Now, inasmuch as the continuance of the unlawful assembly is by the
definition of Section 141 made conterminous with the prosecution of the
common object, it seems tolerably clear that the Legislature must have
employed the words “prosecution of the common object” with some difference
of meaning in these two passages respectively. Also the mere fact that the
Legislature thought fit to express the second alternative appears to show
very distinctly that it did not intend the words “in prosecution” which are
found in the first to be equivalent “during the prosecution”; for if they
were then the second alternative would have clearly been unnecessary. And
a comparison with this passage of the language which is used in Section
460, where the Legislature makes all the persons concerned in committing a
burglary punishable with transportation for life, if any one of their
number act the time of committing of burglary causes death, &c., strongly
bears out this view. I am of opinion that an offence, in order to fall
within the first of the above alternatives, i.e., in order to be committed
in the prosecution of the common object must be immediately connected with
that common object by virtue of the nature of the object: for instance, if
a body of armed men go out to fight, their common object is to cause bodily
injury to their opponents, and in that case death resulting from injury
caused would be homicide committed in prosecution of the common object.

And an offence will fall within the second alternative if the members
of the assembly, for any reason, knew beforehand that it was likely to be
committed in the prosecution of the common object, though not knit thereto
by nature of the object itself.

It seems thus, on a little consideration, to be apparent that the two
alternatives of Section 149 do not cover all possible cases of an offence
being committed by one member of an unlawful assembly during the time when
the common object of the assembly is being prosecuted. It follows that in
every trial of prisoners on a charge framed under the provisions of Section
149 of Penal Code, even when it is proved that the specified offence was
committed by one of the members of the assembly during, so to speak, the
pendency of that assembly, it yet remains an issue of fact to be determined
on the evidence whether that offence was committed in prosecution of the
common object, as I have endeavoured to explain the meaning of those words
in the first part of the Section; and, if not, whether it was an offence
such as the members of the assembly knew to be likely to be committed in
the prosecution of the object.”

The Calcutta High Court was dealing with a case of riot over a dispute
about a piece of land between Fukeer Buksh and Sabid Ali. Tureeboollah, who
was a member of Sabid Ali’s party of assailants, fired a gun and killed one
Samed Ali. The Trial Court held that Tureeboollah was a member of the
unlawful assembly of which the others in Sabid Ali’s party were also
members. It convicted all the accused under Section 302 read with 149 IPC.
The High Court held that the conviction under Section 149 was
unsustainable. In a concurring opinion, Jackson J. held as follows:
“It appears to me that the construction of this Section (149), that is, a
construction which shall be at once reasonable grammatical, involves two
difficulties, or at least two points which call for attentive
consideration:-
1st – “The common object,”
2nd – or “such as the members of that assembly knew to be likely to be
committed in prosecution of that object.”
It has been proposed to interpret the “common object” in a precise
sense so as to indicate the exact extent of violence to which the rioters
intended to go, viz., to take possession of the land by force extending, if
need be, to wounding and the like.
This I think is not the sense in which the words were intended to be
understood.
They are not, it seems to me, used in the same sense as “the common
intention” in Section 34, which means the intention of all whatever it may
have been.
The words here seem to have manifest reference to the defining
Section 141, and to point to one of the five objects, which being common to
five or more persons assembled together, make their assembly unlawful.
For this reason, I think that any attempt to mitigate the rigour of
the Section by limiting the construction of the words “common object” must
fail, and that any offence done by a member of an unlawful assembly in
prosecution of the particular one or more of the five objects mentioned in
Section 141, which is or are brought home to the unlawful assembly to which
the prisoner belonged, is an offence within the meaning of the first part
of the Section.”

Pontifex, J. agreed with the majority and interpreted the word “knew” in
Section 149 in the following terms:
“To bring the offence of murder as defined by the Code within Section 149,
I think it must either necessarily flow from the prosecution of the common
object; or it must so probably flow from the prosecution of the common
object that each member might antecedently except it to happen.
The offence of murder as strictly defined by the Code requires a
previous intention or knowledge in the perpetrator; and to “know” that
murder is likely to be committed, is to know that some member of the
assembly has such previous intention or knowledge. The word “knew” used in
the second branch of the Section is I think advisedly used, and cannot be
made to bear the sense of “might have known.” ”

This Court in Mizaji and Another v. State of U.P.[2]observing that various
High Courts of India had interpreted Section 149 held that every case has
to be decided on its own facts. This court proceeded to deal with Section
149 in detail as under:
“The first part of the section means that the offence committed in
prosecution of the common object must be one which is committed with a view
to accomplish the common object. It is not necessary that there should be a
preconcert in the sense of a meeting of the members of the unlawful
assembly as to the common object; it is enough if it is adopted by all the
members and is shared by all of them. In order that the case may fall under
the first part the offence committed must be connected immediately with the
common object of the unlawful assembly of which the accused were members.
Even if the offence committed is not in direct prosecution of the common
object of the assembly, it may yet fall under Section 149 if it can be held
that the offence was such as the members knew was likely to be committed.
The expression ‘know' does not mean a mere possibility, such as might or
might not happen. For instance, it is a matter of common knowledge that
when in a village a body of heavily armed men set out to take a woman by
force, someone is likely to be killed and all the members of the unlawful
assembly must be aware of that likelihood and would be guilty under the
second part of Section 149. Similarly, if a body of persons go armed to
take forcible possession of the land, it would be equally right to say that
they have the knowledge that murder is likely to committed if the
circumstances as to the weapons carried and other conduct of the members of
the unlawful assembly clearly point to such knowledge on the part of them
all. There is a great deal to be said for the opinion of Couch, C.J.,
in Sabid Ali case [ (1873) 20 WR 5 Cr] that when an offence is committed in
prosecution of the common object, it would generally be an offence which
the members of the unlawful assembly knew was likely to be committed in
prosecution of the common object. That, however, does not make the converse
proposition true; there may be cases which would come within the second
part, but not within the first. The distinction between the two parts of
Section 149, Indian Penal Code cannot be ignored or obliterated. In every
case it would be an issue to be determined whether the offence committed
falls within the first part of Section 149 as explained above or it was an
offence such as the members of the assembly knew to be likely to be
committed in prosecution of the common object and falls within the second
part.”

Mizaji’s case was referred to and relied upon in a long line of decisions
of this court. (See, e.g., Avtar Singh v. State of Haryana[3], Roy
Fernandes v. State of Goa[4], Lokeman Shah v. State of W.B.[5])

Applying the well settled principles laid down by this court we proceed to
examine whether the Accused can be convicted for an offence under section
302 with the aid of Section 149 IPC. As per Section 141 IPC an assembly of
five or more persons is designated an unlawful assembly if the common
object of the persons composing that assembly is to commit an offence
mentioned therein. Guidance is supplied by this Court regarding the
requirement of examining the circumstances in which the incident occurred,
the weapons used and the conduct of the accused during the course of the
incident. In Lalaji v State of Uttar Pradesh[6] this court held that:
“The common object of the assembly must be one of the five objects
mentioned in Section 141 IPC. Common object of the unlawful assembly can be
gathered from the nature of the assembly, arms used by them and the
behaviour of the assembly at or before scene of occurrence. It is an
inference to be deduced from the facts and circumstances of each case.”

There is no dispute about the occurrence of the incident near the house of
the Appellant at 06:00PM on 24.03.98. The oral testimonies of PW1 to PW6,
who were injured witnesses are consistent. The manner in which the incident
occurred, the weapons used by the Accused and the nature of the injuries
caused by the accused were stated clearly therein. The Doctor who treated
the injured were examined and they have proved the medical certificates
issued by them. The doctors who treated the deceased Unadbhai Desurbhai
were produced before the court to speak about the cause of death. PW14 who
conducted the Post Mortem on the body of Unadbhai Desurbhai was also
examined. The situs of the incident is admitted to be near the house of the
Appellant. There is no denial of the incident by the Accused. The
submission of Mr. Raval is that the complainant along with others attacked
the Accused and in the resultant free fight, persons from both sides were
injured. On a careful examination of the totality of the facts and
circumstances of the case, it is clear that Accused formed an unlawful
assembly. Armed with weapons like axe, iron pipes and spear, they proceeded
to attack the Appellant who rebuked the first Respondent in the morning.
After reaching the spot of the incident, they attacked the Appellant and
caused injuries to others who came to his rescue. The common object to
commit an offence can be inferred from the weapons used and the violent
manner of the attack. Having held that the Accused formed into an unlawful
assembly to commit an offence, what remains to be decided is whether they
can be attributed with the knowledge about murder. One of the members of
the unlawful assembly Lakshmanbhai Bhikabhai Vagh (A-10) was convicted and
sentenced under section 302 for committing the murder of Unadbhai
Desurbhai. The question is whether there was a prior concert by all the
members of the unlawful assembly to commit an offence of murder. The
background in which the attack was made by the Accused does not show that
there was a common object of a murder amongst the accused. Accused No.1
was infuriated on being questioned by the Appellant regarding the damage to
the electric pole near his house. Accused No.1 along with the other accused
intended to show their superiority and teach a lesson to the Appellant.
There is nothing on record to suggest any previous enmity between the
parties. Common object to commit a murder cannot be inferred only on the
basis that the weapons carried by the accused were dangerous. The above
facts would indicate that no knowledge about the likelihood of an offence
of murder being committed can be attributed to the members of the unlawful
assembly, barring Lakshmanbhai Bhikabhai Vagh (A-10) who has been convicted
under Section 302 IPC.

Though the accused cannot be convicted under section 302 with the aid of S.
149 IPC in view of the above findings, they would still be liable for a
lesser punishment. The common object of the unlawful assembly to attack the
Appellant and others is proved. Considering the manner of the attack and
the deadly weapons used, we are of the considered opinion that Accused
Valerbhai Deganbhai Vagh (A-1), Unadbhai Deganbhai Vagh (A-2), Bhimabhai
Deganbhai Vagh (A-3), Unadbhai Bhagabhai Vagh (A-5), Bhagwanbhai Bhikabhai
Vagh (A-7), Bhikabhai Jinabhai Vagh (A-8), Hasurbhai Bhikhabhai Vagh (A-
11), Bhanabhai Bhikabhai Vagh (A-12), Patabhai @ Aatabhai Bhikabhai Vagh (A-
13) and Bhavabhai Jikarbhai Vagh (A-14) are guilty of offence under Section
326 read with 149 IPC. We are informed that the accused have already
undergone a sentence of seven and a half years. Considering the fact that
the incident occurred in the year 1998 and that there is no complaint from
either side about any further violence since then we opine that the
sentence can be limited to the period undergone.

It is no more res integra that a finding of the commission of the offence
under Section 326 read with Section 149 can be recorded against members of
an unlawful assembly even if it is established that the offence under
Section 302 was committed by one member of such assembly. (See: Shambhu
Nath Singh and Ors v. State of Bihar[7])

The High Court found that the conviction of the accused under section 302
read with 149 IPC cannot be upheld as there was neither an unlawful
assembly nor a common object to cause death. The High Court miserably
failed to consider the facts and circumstances of the case before coming to
such conclusion. Section 149 IPC does not become inapplicable in all
situations where there is a cross case by the accused. The High Court
ought to have taken note of the acquittal of the Appellant and others in
the said cross case on 24.06.2003. The judgment of the High Court was
delivered on 29.07.2009 by which date there was no cross case pending
against the Appellants. Recording a finding of acquittal without
reappreciation of evidence by the Appellate Court would result in flagrant
miscarriage of justice and that is exactly what happened in this case.

The Appeal is partly allowed and the Accused Valerbhai Deganbhai Vagh (A-
1), Unadbhai Deganbhai Vagh (A-2), Bhimabhai Deganbhai Vagh (A-3), Unadbhai
Bhagabhai Vagh (A-5), Bhagwanbhai Bhikabhai Vagh (A-7), Bhikabhai Jinabhai
Vagh (A-8), Hasurbhai Bhikhabhai Vagh(A-11), Bhanabhai Bhikabhai Vagh (A-
12), Patabhai @ Aatabhai Bhikabhai Vagh (A-13) and Bhavabhai Jikarbhai Vagh
(A-14) are convicted under section 326 read with 149 IPC and sentenced to
the period undergone.

........................................J
[S. A. BOBDE]

..……................................J
[L. NAGESWARA RAO]

New Delhi,
February 01, 2017

-----------------------
[1]
[2] (1873) 20 W.R. 5 Cr. | (1873) 11 Beng. L.R. 347 (FB).
[3]
[4]1959 (1) SCR 940 at p. 946-949.
[5]
[6] (2012) 9 SCC 432 at ¶ 27 and 28.
[7]
[8] (2012) 3 SCC 221 at ¶ 31 and 32.
[9]
[10] (2001) 5 SCC 235 at ¶ 20 and 21.
[11]
[12] (1989) 1 SCC 437 at ¶ 8
[13]
[14] AIR 1960 SC 725 | 1960 Cri LJ 144 at ¶ 6 and 7

-----------------------
19

Monday, January 30, 2017

Section 149 of IPC. - common object of the unlawful assembly= It is trite law that the common object of the unlawful assembly has to be inferred from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. Intention of members of unlawful assembly can be gathered by nature, number and location of injuries inflicted. In the instant case, repeated gun shots fired by Ram Chandra Sah on the person of deceased Ram Udgar Sah, and the injuries caused by lathis by other accused persons on the complainant and his second brother on their heads, clearly demonstrate the objective to cause murder of these persons. We, thus, do not find merit in this appeal which is, accordingly, dismissed.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1143 OF 2010

|GANGA RAM SAH & ORS. |.....APPELLANT(S) |
|VERSUS | |
|STATE OF BIHAR |.....RESPONDENT(S) |

J U D G M E N T

A.K. SIKRI, J.
The case of the prosecution, which has been successfully
established before the trial court as well as the High Court, is as
follows:
On 27.06.1983, a fardbayan was given by the informant
Yogendra Narayan Sah alleging that three days ago, the cattle of Ram
Chandra Sah, accused No. 5 herein (sole accused in Criminal Appeal No. 285
of 1988 before the High Court) grazed the paddy field of the informant,
which incident was brought to the knowledge of the villagers by the
informant. It was further alleged that on 27.06.1983, at about 9 am, he
showed grazed field to the Panches in the presence of accused No. 5 Ram
Chandra Sah. The Panches advised them not to get involved in an
altercation. It was further alleged that while the Panches were busy
inspecting the field, accused No. 2 Sita Ram Sah inflicted lathi blow on
the left leg and thigh of the informant's brother, Bauku Sah. The Panches
intervened and assured that the matter will be resolved shortly.
Further case of the prosecution is that the informant and
his brother returned to their house, whereas Ram Chandra Sah and Sita Ram
Sah rushed to their house. However, no sooner did the informant reached
his house and was standing south-west of it, all the accused persons as
well as one Sukhdeo Sah (since deceased), father of accused Nos.4 and 5,
variously armed arrived there. It was further alleged by the informant
that accused No.5 was armed with gun and others were armed with lathi.
Soon thereafter, Sukhdeo Sah and accused No.1 exhorted other accused to
assault, whereupon accused No.5 fired two gunshots hitting informant's
brother Ram Udgar Sah just at his darwaja (door of the house), thereby
causing his death instantaneously on the spot. The informant alleged that
his brother Ram Udgar Sah sustained pellet wounds in his chest, neck and
mouth. The other accused assaulted the informant with lathi as a result of
which the informant sustained injuries on the right side of the head and
right hand. The accused persons also assaulted the brother of the
informant, Uday Chandra Sah with lathi, on account of which he too
sustained injuries on his head and fell on the ground. Uday Chandra Sah
was then taken to the hospital for treatment. It was further alleged that
the accused persons fled away when the informant raised alarm and witnesses
Ram Swaroop Yadav, Kapu Yadav, Sadhu Sah (PW-6), Dhodhai Sah (PW-7), Bauku
Sah (PW-2) and others reached the place of occurrence. The informant
alleged that the accused persons herein committed the offence because the
informant had chastised them for damaging his crops. On the basis of the
aforesaid fardbayan, a formal FIR was drawn for offences under Sections
147, 148, 149, 307, 302, 325, 332 of the Indian Penal Code, 1860 (for short
the 'IPC') and Sections 25A/26 of Arms Act, 1959 being Mahishi P.S. Case
No. 33 of 1983 on 27.06.1983 at 6 pm. On 28.06.1983, Dr. J. Lal (PW-13)
held postmortem on the body of the deceased. It was recorded in the
postmortem report that on opening the chest, the upper lobes of both the
lungs were found torn with free blood in both sides of the chest cavity.
The injury was anti mortem, fatal and caused by gun shot.

2. After investigation, the police submitted final chargesheet
implicating all five persons named in the FIR, as accused. The trial court
framed the charges against them under the aforesaid provisions. To prove
these charges, the prosecution examined 15 witnesses altogether. Out of
the aforesaid 15 witnesses, Uday Chandra Sah (PW-1), Bauku Sah (PW-2), Anar
Devi (PW-3), wife of deceased Ram Udgar Sah, Parvati Devi (PW-4), mother of
the deceased, Ful Kumari (PW-8) and the informant Yogendra Narayan Sah (PW-
10) were eye-witnesses of the occurrence. One of the injured, Sabo Devi
(PW-9) did not support the prosecution case and was declared hostile.
Sadhu Sah (PW-6) and Dhodhai Sah (PW-7), both village Panches have not
supported the occurrence. They denied to have seen the actual commission
of occurrence and were declared hostile. Dr. P.K. Jha (PW-11) examined the
injured persons, namely, Uday Chandra Sah (PW-1), Bauku Sah (PW-2), Ful
Kumari (PW-8), Sabo Devi (PW-9) at Maheshi Hospital on the day of
occurrence. Jugeshwar Singh (PW-12) is the Investigating Officer of this
case. Dr. J. Lal (PW-13), Civil Assistant Surgeon, Sadar Hospital,
Supaul held postmortem on the dead body of the deceased. J.K. Mishra (PW-
14) and Chotelal Yadav (PW-15) are formal witnesses.

The defence version of the appellants before the trial court was that they
have been falsely implicated in the P.S. Case No.33 of 1983 as they had
lodged a complaint case against the prosecution party bearing No.338(C) of
1983 for an occurrence of same date under Sections 147, 148, 149, 323, 324,
352 and 380 of the IPC filed against the prosecution party wherein
cognizance has been taken. As a matter of fact, accused Ram Chander Sah
took the plea of alibi saying that he was being treated for Jaundice by Dr.
J.K. Thakur, at Laheriasarai between 24.06.1983 to 10.07.1983 and therefore
on the day of occurrence, he was not present in the village.

On defence side also, eight witnesses were examined. These witnesses
included one Dr. Gajendra Prasad Thakur (DW-7), a medical practitioner of
Laheriasarai. After the trial was over, the learned Additional Sessions
Judge after analysing the evidence and material produced before him came to
the conclusion that charges against the accused persons had been
satisfactorily proved by the prosecution. Ram Chandra Sah was sentenced to
undergo rigorous imprisonment for life for the offence punishable under
Section 302 IPC and rest of the accused persons were also sentenced to
undergo rigorous imprisonment for life for the offence punishable under
Section 302/109 IPC.

Against the aforesaid conviction, these accused persons had preferred two
criminal appeals which were heard together by the High Court and have
resulted in dismissal, since the High Court has affirmed the conviction and
sentence recorded by the trial court.

Two special leave petitions were filed against the judgment of the High
Court. Four accused filed one petition and Ram Chandra Sah filed another
special leave petition. On 16.11.2009, while notice was issued in the
special leave petition filed by the four accused persons, the petition of
Ram Chandra Sah was dismissed in limine. In this manner, insofar as
conviction of Ram Chandra Sah is concerned, that has attained finality.
Leave was granted in the other special leave petition on 13.05.2010 which
was converted into the instant appeal i.e. Criminal Appeal No. 1143 of
2010. During the pendency of this appeal, appellant Nos.2 and 4 i.e. Sita
Ram Sah and Jagdish Sah have passed away and, therefore, appeal qua them
stood abated. In these circumstances, we heard the appeal of the other two
appellants, namely, Ganga Ram Sah and Pitambar Sah.

Mr. Nagendra Rai, learned senior counsel appearing for these appellants,
submitted that allegation against Ganga Ram Sah was that he had given
orders and exhorted others to assault whereupon Ram Chandra Sah shot at
Uday Chandra Sah. This was the only role attributed to Ganga Ram Sah but
the same was not proved inasmuch as four eye-witnesses, namely, PW-3, PW-
4, PW-8 and PW-9 did not make any such assertions in their depositions.
Insofar as appellant No. 3 Pitambar Sah is concerned, Mr. Rai has submitted
that no role is attributed to him in the FIR and because of previous
animosity between the parties, he had been falsely implicated.

We are not convinced with the aforesaid arguments. It may be mentioned
that the FIR was registered on the basis of fardbayan given by the
informant Yogendra Narayan Sah immediately after the incident. There is no
time lag between the incident and the FIR. In the said FIR, both appellant
Nos. 1 and 3 are specifically named. Insofar as appellant No.1 is
concerned, specific allegation is made in the FIR that it was the
exhortation of appellant No.1 which led to the said assault. Accused Ram
Chandra Sah fired two gun shots hitting Ram Udgar Sah (brother of the
informant) which caused instant death. Two other eye-witnesses, namely, PW-
1 and PW-2 have also specifically given the statement to this effect,
thereby supporting the version of the prosecution. These witnesses were
cross-examined at length but their testimony could not be shaken. Presence
of Ganga Ram Sah at the scene of occurrence has not been denied. The role
attributed to him, therefore, stands proved, as rightly held by the trial
court as well as the High Court.

It has to be borne in mind that all these persons are convicted under
Section 149 of IPC as well. It has also to be borne in mind that appellant
Nos. 1 to 4 are closely related. In fact, appellant No. 4 Jagdish Sah
(since dead) was father of the other three appellants, namely, Ganga Ram
Sah, Sita Ram Sah (since dead) and Pitambar Sah. The reason for causing
murder of one person and injuring other persons, all of whom were related
and belonged to the rival group, is obvious as stated in the FIR itself. A
dispute had arisen between the two groups three days before the date of
incident in question, which incident was brought to the knowledge of the
villagers by the informant and Panches had advised both the groups not to
involve in any altercation. It is the specific case of the prosecution
that while the Panches were busy inspecting the field, Sita Ram Sah
inflicted lathi blow on the left leg and thigh of Bauku Sah (brother of the
informant). The matter could be resolved with the intervention of Panches.
However, when informant and his brother returned to their house, convicts
Ram Chandra Sah and Sita Ram Sah along with four others came there, armed
with weapons. Ram Chandra Sah was holding a gun whereas other accused
persons were carrying lathis. At that stage, appellant No.1 Ganga Ram Sah
exhorted other appellants to charge the members of the other group. It,
thus, becomes clear that all these appellants had come with clear motive in
mind to bodily harm the members of the informant's family and with common
objective. A calculated action was spearheaded. All the accused persons
were very well aware of the consequence of this action. The Courts below,
therefore, rightly held that ingredients for the offence under Section 149
also stood proved. In that event, both these appellants are also equally
liable for the consequence of causing murder of Ram Udgar Sah and attempt
to murder other victims.

We may mention here at this stage that Mr. Nagendra Rai, learned senior
counsel appearing for the appellants, had made a fervent plea to the effect
that offence under Section 149 IPC was not proved inasmuch as there was no
clear finding recorded by the courts below regarding the nature of common
object and that the object was unlawful. For this purpose, he referred to
the judgment of this Court in Bhudeo Mandal & Ors. v. State of Bihar[1]
wherein the Court has held that before convicting accused with the aid of
Section 149, the Court must give clear findings regarding the nature of
common object and that the object was unlawful and that in the absence of
such findings, offence under Section 149 IPC cannot be held to be proved.
In that case, the Court held that mere fact that the accused persons were
armed would not be sufficient to prove the common object. In the instant
case, however, as already described above, there is a clear finding about
the common object and calculated/concerted action in furtherance of the
said object.

Mr. Rai also referred to the judgment in the case of Thakore Dolji Vanvirji
& Ors. v. State of Gujarat[2] and specifically read out the following
discussion contained therein:
“3. …Now the question is whether all the accused would constructively be
liable for an offence of murder by virtue of Section 149 IPC. So far A-1 is
concerned, it is the consistent version of all the eyewitnesses that he
dealt a fatal blow on the head with a sword and the medical evidence shows
that there was a fracture of skull and the blow must have been very
forceful because even the brain was injured. Therefore, he was directly
responsible for the death of the deceased and the High Court has rightly
convicted him under Section 302 IPC. Now coming to the rest of the accused,
all the eyewitnesses have made an omnibus allegation against them. Even A-
2, according to the eyewitnesses, gave only one blow and that the remaining
accused gave stick blows. All these injuries were not serious and were
simple. The injury attributed to A-2 was on the cheek and the doctor did
not say that it caused any damage. So it must also be held to be a simple
injury. Then we find only a bruise and an abrasion on the right arm and
some bruises on the back. These injuries did not result in any internal
injuries. There was not even a fracture of rib. Therefore they must also be
simple injuries. It is only injury No. 1 which was serious and proved
fatal. Therefore the question is whether under these circumstances common
object of the unlawful assembly was to cause the death of the deceased and
whether every member of the unlawful assembly shared the same? No doubt
Section 149 IPC is wide in its sweep but in fixing the membership of the
unlawful assembly and in inferring the common object, various circumstances
also have to be taken into consideration. Having regard to the omnibus
allegation, we think it is not safe to convict every one of them for the
offence of murder by applying Section 149 IPC. On a careful examination of
the entire prosecution case and the surrounding circumstances, we think the
common object of the unlawful assembly was only to cause grievous hurt. But
A-1 acted in his own individual manner and caused one injury with the sword
which proved fatal.”

The aforesaid discussion is in the context of evidence that emerged in the
said case wherein the Court found, as a fact, that the common object of
unlawful assembly was only to cause grievous hurt. Thus, in that case, when
common object to commit murder was not established and the Court found that
apart from the primary accused (A-1) who had inflicted a fatal blow, there
were omnibus allegations of involvement qua other accused persons, it was
not safe to convict other persons under Section 302 with the aid of Section
149 of IPC. The situation, in the present case, is altogether different.
Here the accused persons had gone to the house of the complainant fully
armed with gun and lathis. This visit was preceded by a scuffle which had
taken place just before that. One person was carrying gun whereas others
were armed with lathis. The moment they reached the house of the
complainant, who was there with his family members, appellant No.1 directed
others to attack the victims party. On this exhortation, Ram Chandra Sah
pulled his gun and shot twice at Ram Udgar Sah. Other accused persons
started assaulting Uday Chandra Sah who sustained wounds on his chest, neck
and face. They also assaulted the complainant as well his brother Uday
Chandra Sah with lathis. Complainant sustained injuries on the right side
of the head and right hand whereas Uday Chandra Sah sustained injuries on
his head and had to be carried to hospital for treatment. All these acts
and events taken together proved beyond doubt that the common object of the
unlawful assembly was not only to cause grievous hurt but to kill the
members of the opposite camp. The aforesaid judgment, therefore, does not
apply to the facts of this case.

It is trite law that the common object of the unlawful assembly has to be
inferred from the membership, the weapons used and the nature of the
injuries as well as other surrounding circumstances. Intention of members
of unlawful assembly can be gathered by nature, number and location of
injuries inflicted. In the instant case, repeated gun shots fired by Ram
Chandra Sah on the person of deceased Ram Udgar Sah, and the injuries
caused by lathis by other accused persons on the complainant and his second
brother on their heads, clearly demonstrate the objective to cause murder
of these persons. We, thus, do not find merit in this appeal which is,
accordingly, dismissed.

.............................................J.
(A.K. SIKRI)

.............................................J.
(R.K. AGRAWAL)

NEW DELHI;
JANUARY 27, 2017.

-----------------------
[1]
(1981) 2 SCC 755
[2] 1993 Supp (2) SCC 534

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