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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

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   (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:

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    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.

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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

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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

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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

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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

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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 .