State of J. and K. vs Abdul Majid Bhat and Others

O.P. Sharma, J.—This Criminal Revision is directed against the order dated 29-8-2000 passed by the Session Judge, Budgam in case State

v. Abdul Majid Bhat and Ors. arising out of FIR No. 36/2000 registered in P/s Beerwa under Sections, 302, 307, 325 and 148, R.P.C. After

investigation the police charged non-petitioners respondents for having committed murder of one Gulam Rasool with the aid of Section 149,

R.P.C. Occurrence allegedly took place after the Tehsildar, Beerwa who had come there to settle the dispute regarding possession of Kahcharai

land had left. It appears there were two groups one asking the other to surrender the possession of Kahcharai land where school building was to

be constructed. Further it appears that Tehsildar, Beerwah failed to bring about a settlement and after he left, the accused allegedly threatened the

prosecution party to take forcibly possession which was resisted. It is in the course of this attempt on the part of the accused party to take forcible

possession that they attacked the prosecution party in which apart from the deceased, some other persons were also injured. The Station House

Officer, Beerwa received information that after the Tehsildar,' Beerwa left the place of occurrence, a free fight ensued between the two groups

who attacked each other with sticks and bricks. It is further stated in the FIR that as a result of free fight Gh. Rasool Mir, Khaliq Mir, Abdul

Qayoom Khan, Abdul Rashid and Mehda Bhat were injured.

The question before the trial Court was whether all of them are to be charged with the aid of Section 149, R.P.C. for having committed murder

and other offences or distinction could be made between those who assaulted the deceased and others. The learned Sessions Judge after a lengthy

discussion came to the conclusion that while A-1 to A-4 are prima facie guilty of offence punishable u/s 302 read with Section 34, R.P.C, while A-

5 to A-9 were guilty of offences punishable under Sections 326, 324, 336, 148 read with Section 149, R.P.C. Charges against them were framed

accordingly.

The State has filed this revision assailing the order on the ground that since the accused had formed an unlawful assembly as defined u/s 141,

Cr.P.C. to commit the aforesaid offences, in such a case every member of unlawful assembly is guilty of the offences committed in prosecution of

the common object. Since all the nine persons were members of the unlawful assembly, each one of them is guilty of the offence of murder

irrespective of the fact who gave the fatal blow.

Mr. Kawoosa, learned Addl. Advocate General has vehemently argued that the order of the trial Court is bad because an attempt has been

made to bifurcate the charge when the occurrence is one and the evidence collected by the investigating police officer holds each one of the

accused guilty of the charge of rioting and committing murder as member of the unlawful assembly. However, the contention of Mr. Qayoom is that

it is a case of sudden fight between two groups as is evident from the First Information Report, therefore, the question of charging all the accused

of murder with the aid of Section 149, R.P.C. would not arise.

The learned Sessions Judge has discussed more law and less of facts, little realizing that application of law depends upon the evidence and it is a

case where the evidence is yet to be recorded. At the stage of framing charge, an attempt to dissect evidence is to be avoided. These are salutary

principles of law which every trial Court must grasp. In this behalf the observations of their Lordships of Supreme Court in State of Himachal

Pradesh Vs. Krishan Lal Pardhan and Others, are illuminating. These are reproduced below :--

The Special Judge, perhaps in his anxiety to absolve the accused of the offences complained of has failed to restrict, his scrutiny within the limits of

Section 239, Cr.P.C. All that is required at the stage of framing of charges is to see whether a prima facie case regarding the commission of certain

offences is made out. The question whether the charges will eventually stand proved or not can be determined only after evidence is recorded in

the case. What the Special Judge has done is to decide the case on merits without giving the prosecution an opportunity to adduce evidence

against the accused. The order of the Special Judge is, therefore, not in accordance with law and is clearly unsustainable. The State is, therefore,

well founded in seeking the quashing of the order of the Special Judge. Whatever be the ultimate outcome of the case the Special Judge should

have framed charges and taken the case for trial instead of discharging the accused u/s 239, Cr.P.C. on the ground that the charges mentioned in

the police report are groundless.

Section 269(1)(b) of the Code of Criminal Procedure reads as under :

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed

an offence which--

(a) x x x x x x

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

This Section corresponds to Section 251A(3) of the Code.

The Supreme Court in Kanti Bhadra Shah and Another Vs. The State of West Bengal, while referring to Section 240 of the Central Code

which corresponds to Section 251-A(3) observed as under :--

It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he

forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he

is only required to frame a charge in writing against the accused.

After this, while referring to the trials by the Sessions Court, their Lordships further held that :--

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 roadblocks causing avaoidable delays. If a Magistrate is to write detailed orders at different

stages merely because the counsel would address arguments at all stages, the snail-paced progress, of proceedings in trial Courts would further be

slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges 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.

Thus, the law laid down in catena of authorities has been reiterated again and again as is evident from that has been stated in State of West

Bengal and another Vs. Mohammed Khalid and others, which reads as under:--

Coming to taking cognizance, it has been held by the High Court that it is not a reasoned order. We are of the view that the approach of the High

Court in this regard is clearly against the decision of this Court in Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and Another, in

(Para 14, p. 721), which is as under :

It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not

undertake an elobarate enquiry in sitting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the Court has to

consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need

be enquired into.

Again, in Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, it is stated at (SCC page 85, para 7 : at P. 1874

of Cri LJ), as under :

Again in Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, this Court observed in paragraph 18 of the

judgment as under :

The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at

the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials

before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged,

may justify the framing of charge against the accused in respect of the commission of that offence.

I wish the learned Sessions Judge who passed the impugned order takes notice of this and avoids repetition of going into such minute details at

the stage of framing charge. Even if offence of murder is not found to be established against some of the accused, but as long as charge is framed

against them, such detailed reasoning is to be avoided. Moreover, the judgments relied by him do not pertain to the evaluation of evidence at the

stage of framing of the charge. These judgments have been rendered after the trial when entire evidence was before the Court. 1 wish this is (sic)

taken note by the Presiding Officer in future.

This takes us to the question as to whether it is the physical presence and promotion of the crime in furtherance of common intention which is

essential or the' physical participation in the commission of crime. This question has been answered by the Apex Court time and again. The latest

being in Jaswant Singh Vs. State of Haryana, wherein following proposition has been laid down :--

We have found such demonstrable perversity in the decision of the High Court, particularly in its appreciation and application of the provisions of

Sections 34 and 149, IPC.

As far as Section 149, IPC is concerned, in addition to the Common object, merely being a member of an unlawful assembly within the meaning of

Section 141, IPC may be sufficient. As held in Lalji and Others Vs. State of U.P.,

Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He

cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the

unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be

taken to have intended the probable and natural results of the combination of the acts in which he joined. :It is not necessary that all the persons

forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the

assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section

makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful

assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the

unlawful assembly may fasten vicariously criminal liability u/s 149. It must be noted that the basis of the constructive guilt u/s 149 is mere

membership of the unlawful assembly, with the requisite common object or knowledge.

While this is the law laid down under Article 141 of the Constitution of India, its application depends upon the facts and circumstances of each

case because criminal cases cannot be put in a straight jacket as held by the Supreme Court in Charan Singh and Others Vs. State of Punjab,

holding that :--

...The question of credibility of a witness has primarily to be decided by referring to his evidence and finding out as to how the witness has fared in

cross-examination and what impression is created by his evidence taken in the context of the other facts of the case. Criminal cases cannot be put

in a strait jacket. Though there may be similarity between the facts of some cases, there would always be shades of difference and quite often that

difference may prove to be crucial. The same can also be said about the evidence adduced in one case and that produced in another. Decided

cases can be of help if there be a question of law like the admissibility of evidence. Likewise, decided cases can be of help if the question be about

the applicability of some general rule of evidence, e.g., the weight to be attached to the evidence of an accomplice. This apart, reference to

decided cases hardly seems apposite when the question before the Court is whether the evidence of a particular witness should or should not be

accepted.

The reference to the above statement of law has been necessitated because the learned Sessions Judge has referred to a catena of authorities

in support of his order. Though these decisions are based on the evidence of each case.

Mr. Qayoom has, however, tried to justify the order on the plea that as per the First Information Report it was a sudden free fight between two

groups and, therefore, the principles of vicarious liability could not be attracted. Assuming that it was so even then the conclusion should have been

different, because in that case the persons have to be held guilty for the offence individually committed by them. But the trial Court has on its own

divided the occurrence into two parts charging four accused for committing murder with the aid of Section 34 while other five have been charged

for the commission of offence punishable under Sections 326/ 324/336/148 with the aid of Section 149, RPC which is not the prosecution case.

So the principle that where the occurrence takes place out of sudden quarrel, accused persons should not be made constructively liable has not

been followed stricto sensu because the trial Court has found that the accused formed an unlawful assembly, but failed to apply which makes each

member of the unlawful assembly liable for the offence committed by any of its member. This is evident from the following passage of the impugned

order where he summarises the statements of witnesses recorded u/s 161, Cr.P.C.

After Tehsildar left, Ishaq Bhat s/o Dila Bhat accused with anger declared that they have to take the possession of 'Khacherai land' which is in

possession of Ahmed Mir group today or tomorrow. Qayoom Khan s/o Aziz Khan replied that unless and until the members group of Mehda Bhat

are not evicted from 'Khacherai Land' they i.e. Ahmed Mir group will not surrender the possession of land in question. Mehda Bhat s/o Karim

Bhat with common object attacked Ahmad Mir Group with the object of committing (Fasad) mischief. All the members of the said party were in

anger and in the heat of passion. Their party leader Mehda Bhat s/o Karim Bhat gave nick names and abuses in anger and after that with full voice

asked the members of his group to do away with the Ahmed Mir group and this is the bone of contention and this is how the quarrel ensued on

spot.

Mohd. Shaft Bhat s/o Ahmad Bhat accused took axe in his hand and proceeded towards Abdul Qayoom injured, but Qayoom in order to save his

life tried to run away but Gani Wani s/o Ramzan Wani accused caught hold of him and Mohd Shafi Bhat accused took advantage of this situation

and hit with a sharp side of the axe, Qayoom Khan on his head who sustained injuries and blood profusely came out. The accused Shafi Bhat due

to fear ran away with axe from the spot.

Majid Bhat son of Mehda Bhat, Ishaq Bhat s/o Dila Bhat who too were in anger gave beating to Ghulam Rasool deceased with fists and kicks.

They were beating him and he was trying to run away but both the accused prevented him from doing the same and during the process Gh. Nabi

Bhat s/o Mehda Bhat gave a blow with force with a 'Danda' on the head of the deceased, while as Majid Bhat s/o Ramman Bhat threw with force

a brick on the head of the deceased. He fell down.

While as Farooq Wani s/o Gani Wani beat Ab. Rashid Khan injured with a small 'Lathi' and Farooq Ahmed Beigh s/o Maqbool Beigh from a

distance of a few yards hurled a small piece of brick on the eye of Rashid Khan and Rashid Khan sustained grievous injuries.

The party leader Mehda Bhat s/o Karim Bhat has not taken any part in the quarrel but every thing was done at his instigation and aid. The accused

have also participated in pelting.

Keeping in view the above facts of the case, whether the assembly of the accused which initially lawful can be held that it has become subsequently

unlawful assembly. While going through Section 141, RPC read with Explanation, it is crystal clear that an assembly, which was not unlawful when

it assembled can subsequently became an unlawful assembly. So I hold that accused have formed an unlawful assembly on spur of moment.

Despite this charge has been framed as if there were two separate incidents and the contradiction is thus self-evident. So in view of the legal

position and the facts as brought on record by the investigating police officer as discussed above, all the accused ought to have been charged as

members of the unlawful assembly and each members of the unlawful assembly u/s 149 is guilty of the offence committed by one of its members.

Since the members of the unlawful assember were armed with deadly weapons such as axe and lathi they were also guilty of rioting u/s 143, RPC.

So the trial Court has erred while bifurcating the charge which unwittingly divides the occurrence in two parts and the accused party into two

groups which is against the mandate of Sections 141, 148 and 149, RPC.

Although Section 227 empowers the trial Court to alter the charge at any stage before the judgment is pronounced, but having been informed that

so far no evidence has been recorded, I am of the opinion that this legal infirmity should be removed to avoid further delay. Accordingly, this

petition is allowed and the order impugned is set aside with a direction to the trial Court to re-examine the matter afresh and pass appropriate

orders after keeping in view the facts of the case and the observations made hereinabove.