JUDGMENT
O.P. Sharma, J.
1. Both these criminal revisions are against the orders dated 16.7.1998 and 19.9.1998 passed by the Sessions Judge, Anantnag granting bail to the accused facing trial Under Section 302 RPC.
2. Facts of the case are briefly as follows:
Charge sheet under Sections 302, 307, 148, 336 and 149 RPC against 15 persons was produced by the police on 26.7.1997. Charges under Sections 302/34, 323, 348, 341 and 336 RPC were framed against A-1 to A-4. By order dated 11.8.1997 Sessions Judge, Anantnag framed charges Under Section 341, 336, 323 and 148 RPC against A-5 to A-15, After framing the charges, the learned Sessions Judge while rejecting the bail application on behalf of A-1 to A-4 admitted A-5 to A-15 to bail on furnishing surety of Rs. 50,000. After sometime, A-1 to A-4 who have been charged Under Section 302 RPC also applied for grant of bail. However, vide order dated 16.7.1998 the court released A-2 to A-4 on bail while A-1 was denied bail. Relevant portion of order dated 16.7.1998 reads as under:
“Since the trial of the case is going on and the prosecution evidence is under way, it would not be prudent to comment upon the quality of evidence existing on the file because that may one way or other prejudice any of the parties and probably determine the future course of trial. At the same time the contention of defence counsel also cannot be lightly brushed aside except for the first accused Nazir Ahmad Bhat in whose case the substance of defence argument does not appear to be applicable for the moment. In addition to what has been said, it would be appropriate to notice that as per charge framed against first four accused who are presently in custody only the first accused Nazir Ahmad Bhat is charged with having used the alleged weapon of offence i.e. axe while the remaining three have been roped in under Section 34 for having shared the common intention of the commission of offence as alleged with the first accused. On this aspect also the defence counsel has pin pointed the wanting nature of the prosecution evidence which could not be effectively rebutted by the ld. P.P. in view of the records of the case.
Under that circumstantial background the accused have presently completed seventeen months is custody and the list of prosecution witnesses which runs into as many as 35 is not likely to be exhausted within immediate future. That being so, the argument of the prosecution that the bail plea should wait till the prosecution witnesses are examined appears to be slightly misplaced because if accepted that may will amount to an undesirably prolonging the agony of accused 2, 3 and 4 in relation to whom the plea and argument of learned defence counsel appears to have quite some substance.”
It appears A-1 again applied for bail and by order dated 19.9.1998 the same was allowed by observing as under:
“In all this circumstantial backdrop arises that question of bail for the first accused. The argument that materials on record do sufficiently indicate that he may not be ultimately found to be guilty of the offence Under Section 302 under which he is charged cannot presently be weighed or assessed in the absolute terms that might prejudice the case of either of the parties. At the same time contentions advanced by defence and supportive materials invoked from the record available on the file cannot be undervalued nor can it be lightly brushed aside. In my opinion the overall impact of what has been canvassed at the bar and which by and large finds support from the records to a particular extent appears to be sufficient to constitute plausible material for considering the bail plea in favour of the accused. Coupled with that, is the fact that the accused has been the only earning member of his family which constitutes his wife and a group daughter and in his absence the family is not only suffering from economic hardship but is also exposed to social vagaries due to lack of proper care.
3. Mr. Atter learned Additional Advocate General argued that the grounds on which bail has been granted are foreign to be scope of Section 497 Cr. P.C. Moreover, the observation of the learned Sessions Judge about the culpability of accused, it is argued, is not only pre-mature, but will prejudice the prosecution case. Moreover, the order dated 19.9.1998 argued Mr. Atter amounts to review of the order dated 16.7.1998 and thus without jurisdiction. Mr. Ganai learned counsel appearing for the accused while controverting the argument advanced by Mr. Atter contended that no ground is made out for cancellation of the bail. According to him once bail is granted to an accused, it could be cancelled only on the ground that they are either tampering the evidence or their remaining at large is not in the interest of justice. In support of this, he placed reliance on the decision of the Supreme Court in Bashir v. State of Harayana, AIR 1978 SC 55. It is settled law that grant of bail in non-bailable offence is the rule and refusal an exception. However, Section 497 Cr. P.C. itself makes an exception with respect to the person charged with the offence punishable with death or imprisonment for life. Sub-section (1) of Section 497 and the proviso read as under:
“497. When bail may be taken in case of non-bailable offence. — (1) when any person accused of (or suspected of commission of) any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:
Provided that the Court may direct that any person under the age of sixteen years of any woman or any sick or infirm person accused of such an offence be released on bail.”
Under this section a person shall not be released if there appear reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. This however, is subject to the proviso that even such a person can be released on bail if he is under the age of 16 years or is a woman or is sick or infirm. None of the accused have been released on bail on any of the aforesaid conditions. So the accused have not been released on bail in terms of the proviso.
4. Let us now consider whether the trial court was justified in its conclusion that three of then accused No. 2 to A-4 are entitled to be released on bail. The learned Sessions Judge may be unwittingly, but quite erroneously in order to justify the order impugned opined that charge against A-1 is more grave as compared to A-2 to A-4 who have been charged under Section 302 read with Section 34 of the Penal Code. However, punishment in both cases being death or life imprisonment, there is not distinction between the accused who gave the fatal blow and those who facilitated the commission of crime. This therefore, could not be the ground to grant bail to the accused charged with murder. Besides, this aspect of the case had been considered at the time of framing of the charge when they were charged with the aid of Section 34 RPC, the court acted illegally and quite improperly while making this observation to justify the bail order.
5. This takes us to the legality of the order dated 19.9.1998 whereby the accused who gave the fatal blow has also been admitted to bail. This order amounts to review of the order dated 16.7.1998. It in fact also amounts to review of the order dated 11.9.1997 by virtue of which the bail application of the accused charged under Section 302 RPC was rejected.
6. Moreover, the trial court has made an abortive attempt to sift the evidence to justify the order releasing the accused on bail when no case for grant of bail under Section 497 Cr. P.C. was made out. So both the orders are illegal and also without jurisdiction. The order also amounts to review of the order dated 11.9.1997 by virtue of which charge under Section 302/34 RPC was framed against the respondents though it has no power to review.
7. There is another aspect of the case. In Raj Deo Sharma v. State of Bihar, AIR 1998 SC 3281 their Lordships have given the following directions:
“16. After deep consideration of the matter, we proceed to supplement the propositions laid down by the Constitution Bench in Antulay’s case (supra) with the following directions:
(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the Court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has been examined all the witnesses or not, within the said period and the court can proceed to the next step provided by law for the trial of the case. (ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit.
(iii) It the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the Court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the Court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the Court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time limit.
(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no Court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by Clauses (i) to (iii).
(v) Where the trial has been stayed by orders of Court or by operation of law such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in “Common Cause” v. Union of India, 1996 (4) SCC 33; (1996 AIR SCW 2279) as modified by the same bench through the order reported in Common Cause a registered Society v. Union of India, 1996 (6) SCC 775 (1997 AIR SCW 290).”
So the bail could be granted only in the cases to which these directions apply and none else.
There is another aspect of the case. The then Sessions Judge while framing the charge passed a lengthy order running into 14 pages to justify the discharge of A-3 to A-15 Under Section 302 RPC. This was hardly necessary. However, despite his hard labour and reference to the various judgements, he erred in framing the charge under Sections 302/34 and 148 RPC besides other offences. This is because charge Under Section 148 RPC can be framed only against members of unlawful assembly as defined Under Section 141 read with Section 145 RPC. These provisions have escaped the notice of learned trial Judge resulting in the error which remained unnoticed.
However, learned Sessions Judge has more often failed to notice the mandate of Section 251-A(3) and Section 269 of the Civil Procedure Code. A plain reading of these provisions indicates that there is no legal requirement that trial court should write order showing reasons for framing the charge. This question has been considered by the Apex Court in a catena of authorities, the latest being Kanti Bhadra Shah v. State of West Bengal, 2000 (1) SCC 722 holding that:
“12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all road-locks causing avoidable delays. If a Magistrate is to writ detailed orders at different stages merely because the counsel would address arguments at all stages, the shall-paced progress of proceedings in trial courts would further be slow-down. We are coming across inter-locutory orders of Magistrates and Sessions Judge running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial.”
(See State of West Bengal v. Mohd Khalid, 1995 (1) SCC 684 para-78)
8. So it is better for the trial courts to avoid giving detailed reasons while framing charge against the accused cast this may cause prejudice to either side. Not only this, at times reliance placed on the judgments which are delivered at the appellate stage after appreciating the evidence may stand in the way of the court in amending the charge if a different offence is made out. Reverting to the grounds on which the bail has been granted, suffice it to say that there is demonstrable perversity in the decision because the trial court has failed to appreciate the object of Section 34 of RPC. It is not necessary to dilate more on this subject in view of what has been stated in Jaswant Singh v. State of Haryana, 2000 (4) SCC 484 which reads:
“aa. Both Section deal with the vicarious liability of an accused for an offence committed by another. Under Section 34 IPC;
“When a criminal act is done by several’persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
Similarly Section 149 IPC provides for the guilt of every member of an unlawful assembly if in prosecution of a common object an offence is committed, or which the members know would be likely to be committed in prosecution of that object.
24. The similarity of the Sections lies in the requirement of a common object or intention or a pre-arranged plan in furtherance of which the act is done. The difference lies in the degree of actual participation required in the criminal enterprise. The nature of participation under Section 34 IPC has been considered in the case of Ramaswami Ayyangar v. State of T.N., 1975 (3) SCC 779 (SCC para 12):
“Section 34 is to be read alongwith the preceding Section 33 which makes it clear that the ‘act’ spoken of in Section 34 includes a series of acts as a single act. It follows that the words ‘when a criminal act is done by several persons’ in Section 34, may be construed to mean ‘when criminal acts are done by several persons. The acts committed by different confederates in the criminal action may be different ……(illegible) must in one way of the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the execution of the common design Such a person also commits an ‘act’ as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the ‘criminal act’. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result.”
9. Since all the four accused have been charged Under Section 302 with the aid of Section 34 RPC any observation while granting bail, that any of them may not be guilty of offence of murder militates against the mandate of Section 34. In view of the above, both the orders impugned are perverse and against law laid down by the Apex Court. Therefore, both these revision petitions are allowed and the impugned orders set-aside.