Without beating about the bush and without leaving any room for ambiguity of any kind, the Allahabad High Court has in a most learned, laudable, landmark and latest judgment titled Sanjeev @ Kallu Sethiya in CRIMINAL MISC. BAIL APPLICATION No. – 18458 of 2022 and cited in 2022 LiveLaw (AB) 471 that was reserved on September 21 and then finally pronounced on October 17, 2022 has minced just no words to observe unambiguously that Section 149 is one of the most misused and misinterpreted provisions of the present times so far as the investigation by the Investigating Officers of police or any other investigating agency of crime is concerned. It must be also mentioned here that the Single Judge Bench of Hon’ble Mr Justice Siddharth who has authored this remarkable judgment observed thus while dealing with a bail plea wherein the accused was implicated, inter alia, under Section 149 of IPC. Honestly speaking, we can see for ourselves that the Court on its impartial analysis of the facts of the case was also fully convinced that the ingredients of the said offence were not made out against him.
To put things in perspective, the Bench then envisages in para 2 that, “In the first information report eight persons, including the applicant, have been implicated for causing the offence of attempt to murder, rioting armed with deadly weapons and forming illegal assembly for prosecution of a common object of murder. There is allegation in the first information report that uncle of informant, Mukesh Agarwal, was sitting on pavement of his house and talking to one, Swadesh, when co-accused, Deepesh Sethiya, came on his Scorpio car and co-accused, Shubham Tamrakar, came out of the car and directed one car standing to be removed and he started abusing. Co-accused, Akhilesh Vishwakarma was also with him. The father of the informant on hearing the noise came out. At the same time other brothers of Deepesh Sethiya, namely, Rakesh Kumar, Vinod Kumar, Manish Kumar, Manoj Sethiya, Kallu @ Sajiv Sethiya etc., came out. Deepesh Sethiya and Rakesh Kumar fired which did not hit any one and in the commotion which followed every one tried to protect themselves from Sethiya brothers. All the accused persons fired on the father of informant, Ashok Agarwal and uncle of the informant, Mukesh Agarwal. Ashok Agarwal, the father of the informant, suffered number of injuries and the uncle of the informant suffered injuries in his leg. Subsequently, father of the informant, Ashok Agarwal, died and implication of the accused persons was also made under Section 302 I.P.C in addition to earlier implication under Sections 147, 148, 149, 307, 302, 504 I.P.C, Section 7 Criminal Law Amendment Act.”
As we see, the Bench then states in para 6 that, “Learned counsel for the applicant has relied upon the judgement of the Apex Court in the case of Mariadasan and others Vs. State of Tamil Nadu, 1980 SCC (Crl.) 523 and has submitted that the Apex Court held in this case that where sudden heated altercation and fight between two parties occurred and deceased tried to intervene, was assaulted on the spur of moment, no unlawful assembly can be said to have been formed at any time with common object of assaulting and killing the deceased. He has further relied upon the judgement of Apex Court in the case of Puran Vs. State of Rajasthan, 1975 SCC (Crl.) 750, wherein the Apex Court held that in the case of sudden and free fight constructive liability cannot be imposed as per Section 149 I.P.C. Reliance has also been placed on the judgement of the Apex Court in the case of Sherey and others Vs. State of U.P., 1991 SCC (Crl.) page 1059, wherein the Apex Court held that where number of accused armed with lethal weapons attacked the victim, it shows that they were members of unlawful assembly with common object of committing murder but the other accused mentioned in an omnibus way who were armed with lathis cannot be implicated without attributing any overt acts to anyone of them and medical evidence ruling out any injury by lathis such accused cannot be convicted. He has submitted that in the first information report two co-accused namely, Deepesh and Rakesh, are stated to have made firing and thereafter omnibus allegations have been made that all the eight accused fired on the deceased and injured his brother which will not make all of them liable for punishment under Section 149 IPC.”
Do note, the Bench points out in para 8 that, “Learned AGA has opposed the prayer for bail but could not dispute the above submissions.”
In a rare candid admission, the Bench then conceded in para 10 that, “At the stage of consideration of bail application the court is required to rely upon the material collected by the Investigating Officer during the course of his investigation. The investigation of criminal cases is rarely fair and the report of the investigation officer under Section 173(2) are mostly one-sided and against the procedure of fair investigation.”
Broadly speaking, the Bench then commendably lays bare in para 12 stating that, “Investigation and charge-sheet form the genesis of the Criminal Trial. Charge-sheet is the outcome of investigation. Under Section 157 of the Code of Criminal Procedure, the procedure of investigation in criminal cases has been incorporated. It requires the intimation of information to the police officer on the commission of a crime. The investigation includes all the procedures which are done by the police officer under the Code for the collection of evidence. The police on registration of FIR shall upon perusal of the facts of the case decide the line of investigation i.e., whether there is circumstantial evidence or eyewitnesses. Circumstantial evidence is the something which is a chain of circumstances that lead to the crime for example previous animosity, threats, last seen theory. It is basically connection of various circumstances to the crime. On the other hand, eyewitnesses are those who have seen the incident take place.”
Most notably, the Bench then candidly concedes in para 37 holding that, “Section 149 I.P.C is one of the most misused, misinterpreted and misleading provision of the present times so far as the investigation by the Investigating Officers of police or any other investigating agency of crime is concerned. The edifice of Section 149 I.P.C stands on substratum of Sections 141 I.P.C, 142 I.P.C and 143 I.P.C. Chapter VIII of the IPC provides for offences against the public tranquillity. Section 141 I.P.C defines unlawful assembly to be an assembly of five or more persons. They must have a common object, amongst others, to commit any mischief or criminal trespass, or other offence. Section 142 I.P.C postulates that whoever being aware of facts which render any assembly an unlawful one, intentionally joins the same would be a member of the same. Section 143 provides for punishment of being a member of unlawful assembly.”
It cannot be lost on us that the Bench then most forthrightly points out in para 38 that, “Section 149 I.P.C provides for constructive liability to every person of an unlawful assembly. If an offence is committed by any member thereof in prosecution of 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. Formation of unlawful assembly having its common object and knowledge of common object are matters of fact which are required to be proved by the prosecution beyond all reasonable doubt for securing conviction of an accused under Section 149 I.P.C. There cannot be any straight jacket formula to arrive at a finding as to who was the member of unlawful assembly and for which object the same was formed. It can be inferred and proved by the cogent evidence only.”
Simply put, the Bench observes in para 39 that, “Section 149 I.P.C has following three essentials (i) there must be unlawful assembly; (ii) commission of offence may be by any member of unlawful assembly; (iii) such offence must have been committed in prosecution of the common object of the assembly, or must be such as member of the assembly knew to be likely to be committed.”
Briefly stated and as a corollary, the Bench then holds in para 40 that, “Only when these three elements are satisfied an implication /conviction under Section 149 I.P.C may be sustained and not otherwise. The law of vicarious liability under Section 149 I.P.C is crystal clear that even mere presence in unlawful assembly, but with an active mind, to achieve the common object, makes a person vicariously liable for the act of unlawful assembly as held by the Apex Court in the case of Amerika Rai Vs. State of Bihar, 2011(4) SCC 677 and Ramchandran Vs. State of Kerala, 2011(9) SCC 257.”
It would be instructive to note that the Bench then specifies and articulates quite elegantly, eloquently and effectively in para 41 that, “The concept of constructive liability must not be so stretched as to lead to false implication of innocent person or if general allegations are made against large number of accused, the Court has to be cautious unless reasonable direct and indirect circumstances lend assurance to the prosecution case that all the accused shared common object of unlawful assembly and hence their implication/conviction not be justified, as held by the Apex Court in the case of Subal Ghorai and others Vs. State of West Bengal, 2013(4) SCC 607.”
Most remarkably, the Bench then hastens to add in para 44 that, “In the present case this court finds that out of three ingredients discussed above, third ingredient for constituting offence under Section 149 I.P.C is not satisfied in this case. The allegations clearly prove that dispute took place all of a sudden regarding parking of car and from the allegations on record it does not appears that all the accused persons had common object of causing the murder of the deceased and attempt to murder of his brother and had formed unlawful assembly knowing that such offence is likely to be committed. The dispute took place all of a sudden wherein two co-accused were involved. The injuries do not prove that any indiscriminate firing was made by all the accused persons. The injury caused to the injured was on his leg and will not constitute offence under Section 307 I.P.C. In the first information report no weapon used in the alleged offence was assigned to the applicant but allegation of firing was made against to him along with co-accused. As per judgements of Apex Court in the case of Ramchandran (supra) and Bhanwar Singh (Supra), nature of arm used is one of the necessary ingredients for considering the common object of the accused who had formed unlawful assembly.”
On the whole, the Bench then after analyzing everything holds aptly in para 47 that, “In view of the above factual position emerging from the record the applicant cannot be said to be rightly implicated under Section 149 I.P.C for the alleged offences. Two fire arm injuries were found on the body of the deceased, Once on abdomen and on thigh of the deceased. The accused named are above five in numbers, therefore, only because they were more in numbers the offence alleged cannot be considered to be made out against them at this stage. It appears to be case of sudden provocation and all the members of the alleged unlawful assembly cannot be held liable for the offence committed by any one or two accused named in the first information report. More so because in this case also the investigating officer of police has not recorded the statement of a single witness from the accused side. All the statements recorded by the investigating officer are of the informant side for justifying the implication of all the accused. The version of accused side, as usual, is missing. Therefore, on the basis of one-sided and flawed investigation the implication of the applicant under Section 149 I.P.C cannot be justified. It could have been done after considering the versions of both sides by the investigating officer, which he was required to do as per law, but he has again miserably failed in performance of his legal duty. The three ingredients for constituting the offence under Section 149 I.P.C discussed in paragraph 12 of this judgement could have been ascertained only after considering the evidence of both sides by the investigating officer and not on the basis of one sided evidence collected by way of illegal investigation. In short, after considering the evidence lead before the trial court only definite opinion can be formed regarding commission of offence under Section 149 I.P.C. At the time of consideration of bail application of an accused, it would be unsafe to deny bail to an accused, implicated for committing offence under Section 149 I.P.C considering the state of investigation of crime by investigating agency in the state.”
Most commendably, the Bench then mandates in para 48 that, “Respectfully concurring with the ratio of cases cited at the bar but in the light of above consideration, keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials in this State and without expressing any opinion on the merits of the case, which may interfere with the discretion of the trial court, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.”
Furthermore, the Bench then directs in para 49 that, “Let the applicant, Sanjeev @ Kallu Sethiya, involved in Case Crime No.279 of 2021, under Sections 147, 148, 149, 307, 302, 504 I.P.C and Section 7 Criminal Law Amendment Act, Police Station Mauranipur, District- Jhansi be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified:-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229- A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.”
For clarity, the Bench notes in para 50 that, “In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.”
In addition, the Bench clarifies in para 52 that, “The trial court is directed to conclude the trial against the applicant as expeditiously as possible, preferable within a period of one year as per Section 309 Cr.P.C from the date of production of certified copy of this order.”
Finally, the Bench concludes by holding in para 53 that, “Registrar (compliance) is directed to communicate this order to the court concerned within a week.”
In sum, the Allahabad High Court has very rightly accorded bail to the accused while explaining the reasons in detail. The Bench has also very candidly conceded that Section 149 IPC is one of the most misused and misinterpreted provisions of the present times. This is what forms the cornerstone of this judgment that the Court has been gracious enough to concede so candidly as elaborated hereinabove!
Sanjeev Sirohi