PETITIONER:
STATE OF WEST BENGAL & ANR.
Vs.
RESPONDENT:
LAISALHAQUE & ORS. ETC.
DATE OF JUDGMENT12/09/1988
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
SHARMA, L.M. (J)
CITATION:
1989 AIR 129 1988 SCR Supl. (2) 870
1988 SCC (3) 166 JT 1988 (4) 32
1988 SCALE (2)1090
ACT:
Criminal Procedure Code, 1973--Sections 215, 218, 221,
374, 386(b), 464; Separate trial of each accused person for
every distinct offence--There must not be any doubt as to 'a
single act or series of acts'--Only when there is error in
stating the offence of the particulars required and it has
occasioned a failure of justice is accused entitled to
relief:
HEADNOTE:
The respondents, sixteen in number, were members of a
riotous mob comprising 40/50 persons who were armed with
deadly weapons. They along with others, went inside the
complainant's oil mill where respondent No. 1, Laisal Haque,
opened fire with his pipegun at Gulam Rabbani which
ultimately resulted in his death. They also assaulted other
persons inside the mill.
Forty-two persons were arraigned to stand their trial
under s. 148 and ss. 302 and 324, read with s. 149 I.P.C.
The Additional Sessions Judge also framed a separate charge
against respondent No. 1, Laisal Haque, under s. 302
simpliciter, and convicted him under s. 148 as well as under
s. 302. The Additional Sessions Judge convicted the other
respondents under s. 147 or s. 148 and s. 324 read with s.
149, and acquitted the remaining 26 accused persons.
The High Court, in appeal, directed retrial of the
respondents on the ground of material defect in the framing
of the charges which had occasioned a failure of justice.
The High Court held that there was no warrant of framing a
separate charge against respondent No. 1 under s. 302
simpliciter without making that charge as an alternative
charge .
Allowing the appeals and remitting the appeals to the
High Court for a decision afresh on merits, it was,
HELD: (1) The High Court was wrong in its view that
there was a fundamental defect in the framing of the
charges. This was clearly a case to which s. 221 of the Code
of Criminal Procedure, 1973 which is an exception to s. 218
of the Code, applies. [875G-H]
PG NO 870
PG NO 871
(2) Section 218 embodies the general rule as to the
trial of accused persons which provides for separate trial
of each accused person for every distinct offence and is
based on the fundamental principle of criminal law that the
accused person must have notice of the charge which he has
to meet. Section 221 applies to a case only when from the
evidence led by the prosecution it is doubtful which of
several offences has been committed by the accused person.
There must not be any doubt as to 'a single act or series of
acts' which constitutes the transaction, that is to say,
there must not be any doubt as to the facts. The doubt must
be as to the inference to be deduced from these facts, thus
making it 'doubtful' which of several offences the facts
which can be proved will constitute. In the instant case,
there is no doubt as to the facts. [875H, 876A-B]
(3) There are serious infirmities in the order rendered
by the High Court. Section 215 of the Code provides that no
error in stating either the offence or the particulars
required to be stated in the charge, and no omission to
state the offence or those particulars, shall be regarded at
any stage of the case as material, unless the accused was in
fact misled by such error or omission, and it had occasioned
a failure of justice. There is no material on record in the
instant case on which the High Court could have reached to
such a conclusion.[878A-B]
(4) In judging a question of prejudice, as of guilt,
the Court must act with a broad vision and look to the
substance and not to the technicalities, and their main
concern should be as to see whether the accused had a fair
trial, whether he knew what he was being tried for, whether
the main facts sought to be established against him were
explained to him fairly and clearly, and whether he was
given a full and fair chance to defend himself. That test is
clearly fulfilled in the facts and circumstances of the
instant case. [878F-H]
Willie (William) Slaney v. State of Madhya Pradesh,
[1953] 2 SCR 1140; K.C. Mathew & Ors. v. State of
Travancore-Cochin, [1955] 2 SCR 1057; Gurbachan Singh & Ors.
v. State of Punjab, AIR 1957 SC 623; Eirichh Bhuian & Ors.
v. State of Bihar, [1963] Suppl. 2 SCR 328 and State of
Maharashtra v. Ramdas Shrinivas & Anr., [1982] 2 SCC 463,
referred to.
(5) The High Court failed to appreciate that in an
appeal by the respondents under s. 374(2) of the Code, the
order of acquittal passed by the Additional Sessions Judge
as against the 26 other accused could not be interfered
with. [879B-C].
PG NO 872
(6) The High Court also failed to appreciate that there
cannot be a piecemeal trial. The retrial directed by the
High Court must necessarily revise the prosecution and must
result in a trial de novo against the 42 accused. The 26
other accused acquitted by the Additional Sessions Judge
were not impleaded as parties to the appeals before the High
Court. In the absence of an appeal preferred by the State
Government against their acquittal, the High Court could not
under s. 386(b), on an appeal by the respondents against
their conviction, alter the acquittal nor can there be a
splitting up of the trial. [879C-E]
State of Karnataka v. Narsa Reddy, [1987] 4 SCC 170,
referred
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
284-285 of 1988.
From the Judgment and Order dated 14.8.86 of the
Calcutta High Court in Criminal Appeal No. 118 and 130 of
1985.
Amal Datta, D.K. Sinha, J.R. Das and N.A. Choudhary for
the Appellants.
Gobind Mukhoty, U.R. Lalit, A.K. Cianguli, R.P. Gupta.
Shakeel Ahmed Syed and A. Mariarputhanl for the ResPondents.
The Judgment of the Court was delivered by
SEN, J. The State Government of West Bengal and the
complainant Mohd. Abu Bakkar Siddique Molla have come up in
appeal by way of special leave, from the judgment and order
of a Division Bench (Sukumar Chakravarty & Gobinda Chandra
Chatterjee, JJ.) of the High Court of Calcutta dated August
14, 1986 setting aside the finding and sentences recorded by
Shri S.K. Mitra, Additional Sessions Judge, 24 Paraganas,
14th Court. Alipore dated April 4, 1985 in Sessions Trial
No. 3(8) of 1983 directing retrial of the respondents before
us, 16 in number, on the ground of material defect in the
framing of the charges which, according to the learned
Judges, had occasioned in failure of justice. The High Court
held that (1) it appears from the heads of the charges
framed by the learned Additional Sessions Judge that the
principal accused Laisal Haque was charged along with other
accused persons under s. 302 read with s. 149 of the Indian
Penal Code, 1860 alleging that in furtherance of the common
obJect of killing the deceased Gulam Rabbani and injure
others, all the rioters committed the murder of Gulam
PG NO 873
Rabbani. If such a charge was framed against all the accused
persons including Laisal Haque, there was no warrant of
framing a charge against the accused Laisal Haque under s.
302 simpliciter, without making that charge as an
alternative charge . (2) The charge framed by the learned
Additional Sessions Judge as against the accused persons was
materially defective inasmuch as it was a rolled up charge,
the common object of the unlawful assembly being to murder
Gulam Rabbani and injure others. The use of the words injure
others without specifically mentioning the names of the
persons who were injured made the charge vague and
indefinite. lnstead the Iearned Additional Sessions Judge
ought to have framed separate and distinct charges for the
assault and causing of grievous hurt in respect of each of
the persons assaulted. (3) The judgment of the learned
Additional Sessions Judge suffers from a serious infirmity
in that he had in a slipshod manner not discussed at all the
evidence separately under different heads of the charges
framed against each of the accused persons. While convicting
the accused persons under s. 324 read with s. 149 he had not
discussed which of the accused persons caused hurt to whom.
In the course of the judgment the learned Judges have
quoted a portion of the judgment of the learned Sessions
Judge recording a finding of guilt, and observed:
It is, therefore, clear that while arriving at the
aforesaid finding, the learned trial Judge has not
discussed about the common object although he convicted the
aforesaid accused persons under Section 148 I.P.C. and under
s. 147 I.P.C. It also appears that while convicting the
accused persons under Section 324 I.P.C. the learned trial
Judge has not discussed which of the accused persons caused
hurt to whom.
Another serious material irregularity in framing the
charge under s. 302 of the Indian Penal Code simpliciter
against the accused Laisal Haque has been shown by Mr. Roy.
It appears from the heads of the charges that this Laisal
Haque was charged along with other accused persons under s.
302/149 of the Indian Penal Code stating that in furtherance
of the common object of killing Gulam Rabbani and injure
others, all the rioters committed the murder of Gulam
Rabbani. If such a charge is framed against all the accused
persons including Laisal Haque, then it does not stand to
PG NO 874
reason why again this Laisal Haque has been charged under s.
302 simpliciter without making that charge as an alternative
charge. Both Mr. Roy and Mr. Dutta (learned counsel
appearing for the respondents accused who preferred appeals
in the High Court) have submitted that because of the
aforesaid irregular charges and rolled up charges, the
respective accused persons have been seriously prejudiced at
the trial and the same has caused the failure of justice.
The learned Advocate appearing for the State also shares the
same view.
The learned Judges then concluded:
On due consideration of the charges and the materials
on record, we also agree to the view as taken by the learned
Advocates for the appellants and shared by the learned
Advocate for the State. Further, the conviction and sentence
under s. 324 or u/s. 323 I.P.C. simpliciter without framing
the charges does not appear to be legal, and have caused the
failure of justice.
The learned Judges accordingly held that the case
required a retrial against the accused respondents alone as
against 16 out of 42 persons arraigned by both the learned
Additional Sessions Judge on reframing Of charges. This was
done without disturbing the order of acquittal recorded by
the learned Additional Sessions Judge and 26 other accused.
The learned Judges were pleased to add that no observation
made by them in the impugned order of retrial shall be
treated as an expression of opinion on the merits of the
case.
It would be convenient at this stage to set out the
charges framed by the learned Additional Sessions Judge
which were in these terms:
First–That you all on or about the 5th September 1980
at Najarnagar alias Sankarpore Ferryghat and P.S. Haroa were
members of an unlawful assembly and did in prosecution of
the common object of which assembly viz. to murder Gulam
Rabbani and injure others, commit the offence of rioting and
at that time were armed with deadly weapons such as bombs,
pipeguns, iron rods, brickbats etc. and thereby committed an
offence punishable under s. 148 of the Indian Penal Code and
within the cognizance of the Court of Sessions.
PG NO 875
Secondly–That you all on the same date and place were
members of an unlawful assembly and did in prosecution of
the common object of such assembly viz. to murder Gulam
Rabbani and injure others, some of you did commit murder by
intentionally causing the death of the said Gulam Rabbani by
gun shot injury, which offence you know likely to be
committed in prosecution of the common object and thereby
committed an offence punishable under s. 302/ 14 I.P.C. and
within the cognizance of the Court of Sessions.
Thirdly–That you all on the same date and place were
members of an unlawful assembly and did in prosecution of
the common object of such assembly viz. to murder Gulam
Rabbani and injure others some of you voluntarily caused
hurt to Mokbul Molla, Mr. Akbar Ali Molla, Abu Molla, Yasin
Molla, Abdul Wahed Ahed Bux Molla, Daulat Ali Molla, Jaid
Molla & Ors. by gun iron rod, bombs, lathi etc. which used
as weapons of offence were likely to cause death which
offence you knew likely to be committed in prosecution of
the common object and thereby committed an offence
punishable under s. 324/149 I.P.C. and within the cognizance
of the Court of Sessions.
The learned Sessions Judge also framed a separate
charge against the respondent Laisal Haque for the
substantive offence of culpable homicide amounting to murder
punishable under s. 302 of the Indian Penal Code, which is
in the following terms:
That you, on or about the 5th September, 1980 at Najarnagar
alias Sankarpore Ferryghat, under Police Station Haroa did
commit murder by intentionally causing the death of Gulam
Rabbani and thereby committed an offence punishable under s.
302 of the Indian Penal Code and with him the cognizance of
the Court of Sessions. And I hereby direct that you be
tried by the said Court on the said charges.
We are unable to subscribe to the view of the High
Court that there was a fundamental defect in the framing of
the charges. This was clearly a case to which s. 221 of the
Code of Criminal Procedure, 1973 which is an exception to s.
218 of the Code viz. that for every distinct offence there
should be a separate charge and every charge should be tried
separately, applies Sec. 218 embodies the general rule as
to the trial of accused persons which provides for separate
PG NO 876
trial of each accused person for every distinct offence and
is based on the fundamental principle of criminal law that
the accused person must have notice of the charge which he
has to meet. Sec. 221 applies to a case only when from the
evidence led by the prosecution it is doubtful which of
several offences has been committed by the accused person.
There must not be any doubt as to a single act or series of
acts which constitutes the transaction, that is to say,
there must not be any doubt as to the facts. The doubt must
be as to the inference to be deduced from these facts, thus
making it doubtful which of several offences the facts which
can be proved will constitute. In the present case, there is
no doubt as to the facts. It is uncontroverted from the
facts found by the learned Additional Sessions Judge that
the sylvan surroundings of Shankarpore Ferryghat at
Najarnagar on the banks of the river Bidyadhari which
otherwise are peaceful and calm, witnessed a tumultuous
occurrence on the morning of September 5, 1980 resulting in
a grisly tragedy. The facts are that PW 1 Mohd. Abu Bakkar
Siddique Molla is a man of easy circumstances, owning an oil
mill, a saw mill and a flour mill besides cultivation of his
own. All of a sudden, the atmosphere of Shankarpore was
surcharged with turmoil and violence when a marauding crowd
of 40/50 miscreants including the respondents armed with
deadly weapons such as pipeguns, bombs, spears, tangis, iron
rods, lathis etc. let loose their fury on the oil mill of
the complainant. The armed mob caused considerable damage to
the complainant s car WBE 1227 parked in front of the oil
mill. Seeing the riotous mob the deceased Gulam Rabbani, an
employee of the complainant, who was inside the oil mill
along with other employees and the customers, pulled down
the shutters of the mill but could not escape the wrath of
the armed mob. They effected a forcible entry into the mill
by lifting the shutters. The respondent Laisal Haque, the
principal accused, who was armed with a pipegun, fired a
shot at the deceased Gulam Rabbani who fell down on the spot
and later succumbed to his injuries at the hospital. His
associates then assaulted some of the customers inside the
mill who were awaiting their turn as well as some of the
employees with their weapons. After the deceased Gulam
Rabbani was gunned down and several others received multiple
bleeding injuries, the armed mob retreated to the direction
from which it came.
Forty-two persons were arraigned to stand their trial
before the learned Additional Sessions Judge for the
aforesaid offences with which they were charged, namely,
under s. 148, and ss. 302 and 324, both read with s. 149. As
already stated, the learned Additional Sessions Judge also
PG NO 877
framed a separate charge against the respondent Laisal Haque
under s. 302 simplicter for having committed the murder of
the deceased Gulam Rabbani.
On a careful consideration of the evidence adduced by
the prosecution and the circumstances attendant, the learned
Additional Sessions Judge came to the definitive finding
that the respondents who are 16 in number, were members of a
riotous mob comprising 40/50 persons armed with deadly
weapons, that they along with others went inside the mill
and then respondent No. 1 Laisal Haque opened fire with his
pipegun at Gulam Rabbani which ultimately resulted in his
death, and further that they were the persons who assaulted
the persons inside the oil mill and caused injuries to the
servants of the complainant and others, namely, PW 7 Ahed
Bux Molla, PW 8 Sanai Molla, PW 9 Fakir Ali Sardar, PW 10
Rambilas Thakur, PW 15 After Molla, PW 16 Gulam Molla, PW l9
Debiruddin Molla, PW 20 Md. Yasin Molla, PW 21 Motiar Rahman
and PW 22 Afsar Ali Molla. He accordingly convicted
respondent No. 1 under s. 148 as well as under s. 302 of the
Indian Penal Code and sentenced him to rigorous imprisonment
for a terms of three years and imprisonment for life
respectively. He convicted some of the respondents who were
armed with deadly weapons under s. l43 and S. 324 read with
s. 149 and sentenced them to undergo rigorous imprisonment
for a period of three years on both counts. Some other
respondents were however convicted under s. 147 and
sentenced to suffer rigorous imprisonment for two years.
Presumably, the learned Additional Sessions Judge proceeded
upon the basis that the act of respondent No. 1 Laisal Haque
in opening fire with his pipegun at the deceased Gulam
Rabbani was covered by clause thirdly of s. 300 and
therefore he was guilty of culpable homicide amounting to
murder punishable under s. 302. But as regards others, he
was of the view that the common object of the unlawful
assembly was not to commit the murder of the deceased Gulam
Rabbani but to voluntarily cause the servants of the
complainant and others hurt by dangerous weapons and thus
convicted them of the offence under s. 148 and s. 234 read
with s. 149. We refrain from expressing any opinion on the
merits as to the legality and propriety of the conviction
recorded as against these respondents. That is a matter for
the High Court and it must come to the conclusion as to
their guilt or otherwise on a proper appreciation of the
evidence. We regret to find that there is complete non-
application of mind on the part of the High Court and
instead of considering the appeals preferred by the
respondents, it has passed an order for retrial which is
totally unwarrnated. It was nobody’s case that were, in
fact, misled by any error or defect in the charges framed
PG NO 878
nor has the High Court explained as to how there has been a
failure of justice. The High Court was clearly in error in
directing a remand for retrial of the respondents.
There are serious infirmities in the impugned order
rendered by the High Court. Sec. 2 15 of the Code provides
that no error in stating either the offence or the
particulars required to be stated in the charge, and no
omission to state the offence or those particulars, shall be
regarded at any stage of the case as material, unless the
accused was in fact misled by such error or omission, and it
has occasioned a failure of justice. There is no material on
record on which the High Court could have reached to such a
conclusion. We may next refer to s. 221 of the Code which
provides by sub-s. (1) that if a single act or series of
acts is of such a nature that it is doubtful which of
several offences the facts which can be proved will
constitute, the accused may be charged with having committed
all or any of such offences, and any number of such charges
may be tried at once; or he may be charged in the
alternative with having committed some one of the said
offences. Sub-s. (2) thereof provides that if in such a case
the accused is charged with one offence, and it appears in
evidence that he committed a different offence for which he
might have been charged under the provisions of sub-s. (1),
he may be convicted of the offence which he is shown to have
committed, although he was not charged with it.
Next, Sec. 464 of the Code provides that no finding,
sentence or order by a Court of competent jurisdiction shall
be deemed invalid merely on the ground that no charge was
framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of
charges, unless, in the opinion of the Court of appeal,
confirmation or revision, a failure of justice has, in fact,
been occasioned thereby.
In the celebrated case of Willie (William) Slaney v.
State of Madhya Pradesh, [1955] 2 SCR 1140, Vivian Bose, J.
speaking for the Court after an elaborate discussion
observed that in judging a question of prejudice, as of
guilt, the Courts must act with a broad vision and look to
the substance and not to the technicalities, and their main
concern should be to see whether the accused had a fair
trial, whether he knew what he was being tried for, whether
the main facts sought to be established against him were
explained to him fairly and clearly, and whether he was
given a full and fair chance to defend himself. That test is
clearly fulfilled in the facts and circumstances of the
present case. The principles laid down by that very eminent
Judge in Slaney’s case have throughout been followed by this
PG NO 879
Court. See: K.C. Mathew & Ors. v. State of Travancore-
Cochin, [1955] 2 SCR 1057, Gurbachan Singh v. State of
Punjab, AIR 1957 SC 623, Eirichh Bhuian & Ors. v. State of
Bihar, [1963] Suppl. 2 SCR 328 at pp. 336-37 and State of
Maharashtra v. Ramdas Shrinivas Nayak & Anr., [1982] 2 SCC
463.
Lastly, we are constrained to observe that the High
Court has not examined the merits of the case at all. If it
had done so, it could not have come to the conclusion that
there was any material defect or omission in the framing of
the charges or giving the particulars thereof or any failure
of justice was occasioned thereby. It failed to appreciate
that in an appeal by the respondents under s. 374(2) of the
Code, the order of acquittal passed by the learned
Additional Sessions Judge as against the 26 other accused
could not be interfered with. The High Court also failed to
appreciate that there cannot be a piecemeal trial. The
retrial directed by the High Court must necessarily revise
the prosecution and must result in a trial de novo against
the 42 accused. The 26 other accused acquitted by the
learned Additional Sessions Judge were not impleaded as
parties to the appeals before the High Court. In the absence
of an appeal preferred by the State Government against thir
acquittal, The High Court could not under s. 386(b) on an
appeal by the respondents against their conviction, alter
the acquittal nor can there be a splitting up of the trial.
See: State of Karnataka v. Narsa Reddy, [ 1987] 4 SCC 170.
Accordingly, the appeals must succeed and are allowed.
The judgment and order passed by the High Court are set
aside and the appeals are remitted to the High Court for a
decision afresh on merits after notice to the parties.
R. S . S . Appeals allowed .