Facts:
Sadhu Ram was murdered on November 5, 1953, at around 6:45 p.m. inside Vas Dev P. W. 2’s store. The appellant and several people are accused of attacking Sadhu Ram. The appellant had a takwa as a weapon. Sadhu Ram’s body was found to have numerous wounds. The doctor doing the postmortem examination determined that injuries 1, 3, and 4 were caused by a heavy, sharp-edged instrument and may have been a takwa. The prosecution refuted claims that another person used a takwa to attack the deceased. According to the medical evidence, both individually and collectively, the injuries 1, 3, and 4 were sufficient to result in death in the natural run of things.
The appellant and other defendants were accused in the Court of Sessions with violating sections 148 and 302, read together with section 149, of the Indian Penal Code. However, the Additional Sessions Judge ruled that the rioting charge was unfounded. Accordingly, he determined that the appellant and three more defendants had violated sections 302 and 34 of the Indian Penal Code. He exonerated the other three defendants. The High Court heard an appeal from three convicted individuals, and it found the appellant guilty alone under section 302 of the Indian Penal Code, upholding the death penalty. However, the conviction of the other two accused parties was changed from section 302/34 to section 323 of the Indian Penal Code. It declared that section 34 of the Indian Penal Code’s rules did not apply.
Issue:
On the charge of Section 302 IPC read with Section 149, Nanakchand was put on trial alongside other defendants. When the trial was over, it was determined that Section 149 did not apply, so the trial court found him guilty under Section 302 read with Section 34 of the IPC. How reliable is the conviction?
Arguments from petitioner:
Mr. G.C Dhanda learned counsel for the petitioner, has submitted that the petitioner has not committed any offence and it is not desirable that he should be taken into custody when he is prepared to associate himself with the investigation Reliance is placed on two decisions in 1984 Crl. L.J 214 and 1978 Crl. L.J 502. If the argument of Mr. Dhanda is taken to the logical conclusion then it would imply that every accused who can successfully evade his arrest should be granted anticipatory bail if he files an application under S. 438 of the Code of Criminal Procedure. This is not the intention of the Legislature. The powers under S. 438 said Code have to be sparingly used and should be invoked for furthering the ends of justice and saving innocent persons from being harassed or humiliated in appropriate cases While considering the ambit and scope of Section 438(1) of the Code, Their Lordship3 of the Supreme Court opined in Garbax Singh Sibia v. State of Punjab, 1980 (2) S.C.C 565 that the grant of anticipatory bail was a matter of judicial discretion and no hard and fast rule could be laid down in such discretionary matter for the grant or refusal of bail whether anticipator or after arrest.
Arguments from defendant:
The prosecution had contended that no judgement or sentence handed down could be regarded as illegitimate because no charges had been brought. The requirements of Section 535 of the Code of Criminal Procedure were relied upon. Additionally, the rules of section 537 of that Code were mentioned. If a court of appeal or revision believes that the non-framing of a charge has led to a failure of justice, Section 535 does allow it to overturn the finding or sentence. A finding or sentence may also be overturned under Section 537 if any error, omission, or irregularity in the charge actually caused a failure of justice. The section’s explanation undoubtedly instructs the court to take into account the fact that the objection could and should have been made earlier in the proceedings. However, as no charge under section 302 of the Indian Penal Code was actually formulated in the matter at hand, there is no dispute as to any error, omission, or irregularity in the charge. According to Section 232 of the Code of Criminal Procedure, a court of appeal or court of revision may order a new trial to be held on a charge that is framed however it sees fit if it determines that a person convicted of an offence was misled in his defence due to an error in the charge or by the absence of a charge. According to our assessment of the current situation, there was an illegality rather than an irregularity that might be rectified under the terms of sections 535 and 537 of the Code of Criminal Procedure. Even if there were only a minor irregularity that could be corrected, we are confident that under the circumstances of the current case, the irregularity cannot be corrected because the appellant was misled in presenting his defence by the lack of a charge under section 302 of the Indian Penal Code.
Statutes and case laws
Statutes:
Section 149 in The Indian Penal Code
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.
Section 302 in The Indian Penal Code Punishment for murder.—Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine.
Section 34 in The Indian Penal Code
Acts done by several persons in furtherance of common intention.—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.
Section 233 in The Code Of Criminal Procedure, 1973
Entering upon defence.
(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
Section 236 in The Code Of Criminal Procedure, 1973
Previous conviction. In a case where a previous conviction is charged under the provisions of sub- section (7) of section 211, and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted the said accused under section 229 or section 235, take evidence in respect of the alleged previous conviction, and shall record a finding thereon: Provided that no such charge shall be read out by the Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under section 229 or 235
Section 237 in The Code Of Criminal Procedure, 1973
Procedure in cases instituted under section 199 (2).
(1) A Court of Session taking cognizance of an offence under sub- section (2) of section 199 shall try the case in accordance with the procedure for the trial of warrant- cases instituted otherwise than on a police report before a Court of Magistrate: Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution.
(2) Every trial under this section shall be held in camera if either party thereto so desires or if the Court thinks fit so to do.
(3) If, in any such case, the Court discharges or acquits all or any of the accused and is of opinion that there was no reasonable cause for making the accusation against them or any of them, it may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed (other than the President, Vice- President or the Governor of a State or the Administrator of a Union territory) to show cause why he should not pay compensation to such accused or to each or any of such accused, when there are more than one.
(4) The Court shall record and consider any cause which may be shown by the person so directed, and if it is satisfied that there was no reasonable cause for making the accusation, it may, for reasons to be recorded, make an order that compensation to such amount not exceeding one thousand rupees, as it may determine, be paid by such person to the accused or to each or any of them.
(5) Compensation awarded under sub- section (4) shall be recovered as if it were a fine imposed by a Magistrate.
(6) No person who has been directed to pay compensation under subsection (4) shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section; Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
(7) The person who has been ordered under sub- section (4) to pay compensation may appeal from the order, in so far as it relates to the payment of compensation, to the High Court.
(8) When an order for payment of compensation to an accused person is made, the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided.
Case laws:
Barendra Kumar Ghosh v. Emperor(1) held that each individual offence for which a person is accused should have its own charge and trial, with the exception of those covered under sections 234, 235, 236, 237, and 239 of the Code of Criminal Procedure. A unity of criminal behaviour leading to something for which a person would be punished if it were all done by himself alone, that is, in a criminal offence.
Queen v. Sabid Ali and 1 [1925] I.L.R. 52 Cal, 197, Others, emphasised that there is a distinction between purpose and intention since, despite the fact that the participants of an unlawful assembly may have a shared purpose, their intentions may vary and, in fact, may only be identical in that they are all unlawful, as opposed to the element of participation in action.
Emperor v. Madan Mandal and Others(‘), Panchu Das v. Emperor(2), and Reazuddi and Others v. King-Emperor(3). If an accused person was found not guilty of the substantive offence under a section 149 of the Indian Penal Code, it would be unlawful to convict them of that offence without first framing a charge.
Judgement
The court said that the nature of the charge against the petitioner as contained in the first information report is quite serious. The fact that the allegation relate to embezzlement of Rs. 9,726/- cannot be brushed aside. A perusal of the police record shows that the investigation so far conducted has revealed the complicity of the petitioner in the case right from the beginning. Whether or not the accusation is correct, is not to be seen at this stage as indeed such a consideration would be premature and It would not like to express any opinion on that aspect of the case. It has been strenuously urged on behalf of the State that the arrest of the petitioner is required for making certain recoveries and for ascertainment of the other material facts regarding the disposal of the money. Applying the guidelines given by the Supreme Court in Gurbax Singh Sibia’s case they find that the petitioner has not made out a case for anticipatory bail. And Considering the facts and circumstances of the case, the seriousness of the accusation and the larger interests of the public and the State,they do not find any jurisdiction to admit the petitioner to anticipatory bail. The petition is accordingly rejected.
Conclusion:
Section 34 of the Indian Penal Code solely serves as an explanation. It doesn’t cause any particular offence. In order to commit a crime under this provision, multiple people must share a common intention, and each of them is held accountable for the crime as if it had been committed by them alone. The common purpose to commit a crime is the main component of Section 34 of the Indian Penal Code. The commission of that crime may be accomplished by a number of people acting in concert to further the shared purpose.
According to Section 34, each of them would be held accountable for the crime in question in the same way as if he had committed all the acts that led to it alone. In accordance with Indian Penal Code Section 149, common intention is not a factor. If the conditions outlined in the section are met, an unlawful assembly member may commit an offence and the other participants will be held accountable for that offence even if there was no shared intention to commit that offence between the offender and the other participants.
Therefore, even though there may have been no shared intent and no participation on the part of the other members in the actual commission of that offence, every member of the unlawful assembly would be guilty of that offence if the offence committed by that person is in furtherance of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in furtherance of the common object.
While the leading element of section 34, participation in action, is replaced in section 149 by membership in the assembly at the time of the commission of the offence, there is still a difference between the two. While the object of the unlawful assembly may be common, the intentions of the various members may differ, and they may even be similar only in that they are all unlawful.
Without a specific charge being formed in accordance with s. 233 of the Code of Criminal Procedure, a defendant charged with an offence defined by s. 149 cannot be found guilty of the substantive offence.
No charge under Section 302 of the Indian Penal Code was really established, there was no question of any error, omission, or irregularity in the charge in the instant instance as defined by Section 537 of the Code of Criminal Procedure.
In this case, there existed an illegality rather than an irregularity that might be corrected by the guidelines in Sections 535 and 537 of the Code of Criminal Procedure. Even if there were just minor irregularities that might be corrected, the appellant was mislead in his defence by the lack of a charge under section 302 of the Indian Penal Code.
By charging the appellant under Section 302, Read with Section 149 of the Indian Penal Code, the Court made it clear that it was not accusing him of the crime of murder, and that to find him guilty of murder and sentence him under Section 302 of the Indian Penal Code would be to find him guilty of a crime for which he had not been charged.
Citation:
- Section 149 in The Indian Penal Code
- Section 302 in The Indian Penal Code
- The Indian Penal Code Section 34
- The Indian Penal Code Section Code
- The Indian Penal Code
- Willie (William) Slaney vs The State Of Madhya Pradesh on 31 October, 1955
- Nanak Chand vs The State on 28 March, 2017
- Jai Narain vs Ziey Singh And Ors. On 10 July, 1981
- Lakhan Mahto & Ors vs State Of Bihar on 24February, 1966
- Rashid Suhail Siddiqui And Ors. Vs State Of Madhya Pradesh And Anr. On 30 July, 1993
- Section 233 in The Code Of Criminal Procedure, 1973
- Section 236 in The Code Of Criminal Procedure, 1973
- Section 237 in The Code Of Criminal Procedure, 1973
- Barendra Kumar Ghose vs Emperor on 8 October, 1923
- Narain & Ors vs State on 19 March, 2010
- Ram Kharia Son Of Late Lodo Kharia vs The State Of Jharkhand on 31 August, 2020
- Govind Ram Agarwal & Ors vs Govind Ram Agarwal & Ors on 8 July, 2015
- Gopal Sharma Son Of Somaru Sharma vs The State Of Jharkhand on 6 September, 2021
- Sukhwinder Singh & Anr vs State Of Punjab on 27 September, 2013
Written by- Esha chatterjee, Birla global University intern under legal vidhiya
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