Patna High Court
Md. Kari & Anr vs The State Of Bihar on 15 November, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.2281 of 2017
Arising Out of PS. Case No. -183 Year- 2001 Thana -DARBHANGA SADAR District- DARBHANGA
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1. MD. KARI, SON OF LATE MD. NAZIR.
2. ALAMGEER @ MD. ALAMGEER, SON OF LATE SHEIKH KARI @ LATE
MD. KARI
BOTH ARE RESIDENT OF VILLAGE- MURIYA, P.S.-SADAR, DISTRICT-
DARBHANGA. .... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR .... .... RESPONDENT/S
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Appearance:
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Md. Imteyaz Ahmad, Adv.
Mr. Nilesh Kumar, Adv.
Mrs. Babita Kumari, Adv.
For the State : Mr. Sujit Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 15-11-2017
1. Challenge in this appeal is the judgment of conviction
dated 13.07.2017 and order of sentence dated 18.07.2017 passed by
the Presiding Officer, FTC, Darbhanga in Sessions Trial no.210/2002
whereby and whereunder both the appellants, namely, Alamgeer @
Md. Alamgeer, Md. Kari, have been found guilty for an offence
punishable under Section 307/149 of the IPC, 27 of the Arms act and
directed to undergo R.I. for five years, R.I. for three years,
respectively with a further direction to run the sentences concurrently
as well as the period already undergone, to be set of in accordance
with Section 428 of the Cr.P.C.
2. Raktu Paswan (not examined) gave his fardbeyan on
27-11-2001at about 12:15 PM at the place of occurrence alleging inter alia that he along with other members of the prosecution party 2. happen to be Bataidar relating to sixteen Bighas of land belonging to Ravi Bhagat lying at western side of the village wherein they have grown up paddy crop. It has further been alleged that on the alleged date at about 10:30 AM, a mob armed with deadly weapons including firearm, bhala, farsa , bomb etc. consisting of Ajit Bhagat, Ravi Bhagat, Alamgeer @ Md. Alamgeer along with his two brothers armed with (gun) Kari Mian, Chhote Mian, Sahabuddin (Bomb), Raja (lathi) raided their field and began to loot the standing paddy crop. After coming to know about the same, he, his mother Kushma Devi, Rekha Devi, Shilawati Devi along with others rushed seeing whom, Alamgeer, Ravi Bhagat, Ajit Bhagat, Kari Mian and others, with an intention to kill, began to fire aiming them. During course thereof, Ajit Bhagat shot dead his mother Kushma Devi, while his wife Rekha Devi, Sheelawati Devi, Beena Devi, Rajkala Devi, Ramraji Devi, Babadai Devi, Dairani Devi, Buchiya Devi and others sustained firearm injuries having fired at the end of accuse persons. It has further been asserted that they have looted away the paddy.
3. On the basis of the aforesaid fardbeyan, Sadar P.S. Case No.183/2001 was registered whereupon, investigation commenced and after concluding the same, charge sheet was submitted against Alamgeer, Chhote Mian, Sahabuddin, Raja @ Jafirul Islam and Kari keeping the investigation pending against remaining (status has not been disclosed at respective end) as a result of which, trial commenced and concluding in a manner, subject 3. matter of instant appeal.
4. Defence case, as is evident from mode of cross- examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has also been pleaded that prosecution parties were aggressor, they raided upon the land being armed variously and on protest having at the end of appellants, they began to fire and during course thereof, they themselves sustained injuries. So, deceased as well as injured sustained self inflicted firearm injuries. Defence had also examined DWs as well as exhibited documents in support thereof.
5. As is evident from the lower court record, prosecution had examined altogether nine PWs out of whom PW.1 is Dr. Prafulla Kumar Das who conducted postmortem, PW.2 Arun Kumar Lal, formal in nature, PW.3 Rekha Devi wife of informant, PW.4 Beena Devi wife of informant, PW.5 Babdai Devi, PW.6 Ramgulam Sahani (hostile), PW.7 Surendra Yadav, PW.8 Sunil Kumar Das, Part I.O. and PW.9 Dr. Shailendra Kumar who had examined the injured. Prosecution had also exhibited Ext.I-PM Report, Ext.2-Formal FIR, Ext.3-Signature of PW.6 over fardbeyan, Ext.4-Inquest Report, Ext.5 Series- Injury report relating to respective injured. Side by side defence had examined two DWs, DW-1-Hari Sah and DW.2-Pradeep Kumar (both formal in nature) and had exhibited Ext.A Darbhanga Sadar P.S. Case No.207/2000 filed by PW.6 against Sahabuddin 4. (since deceased) Ext.B-Signature of S.K. Rai over unregistered patta dated 12.05.1998 executed in favour of Kanchan Sahni and Alamgeer relating to pond, Ext.B/1- is the signature of Aditya Bhagat over the aforesaid patta, Ext.C-C.C. of Complaint Petition No.795/2000 filed by Alamgeer against Rajesh Paswan and others, Ext.C/1-Signature of learned counsel over Complaint Petition No.795/2000.
6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellants that the learned court had wrongly, illegally ignored the deficiency persisting in the prosecution case without any cogent reason. Had there been proper acknowledgement of the same, the judgment of conviction and order of sentence would not have surfaced. Stressing over the point, it has been submitted that main Investigating Officer has not been examined on account thereof, the material development having in the evidence of PWs could not be brought up on record in legal way which, as it appears caused serious prejudice. In same sequence, it has also been submitted that on account of non-examination of the main Investigating Officer as is evident from the evidence of the PWs that there happens to be inconsistent stand over manner of occurrence as well as place of occurrence, appellants could not got opportunity to sack them side by side, also been deprived of an opportunity to bring on the record objective finding of the I.O. relating to the P.O. coupled with physical possession over the same, though admitted by the prosecution to be landlord. So, the non-examination of the 5. Investigating Officer in the aforesaid facts and circumstances of the case, appears to be fatal to the prosecution case side by side also caused serious prejudice to the interest of the appellants and that being so, is found sufficient for getting the judgment impugned annuled.
7. It has further been submitted that informant has not been examined. From the evidence of the PWs, it is evident that they all happens to be from one family that of informant. That means to say only the informant‟s family is found hostile, claiming the entire land being Bataidar which, from their evidences, is found completely immiscible as, the witnesses, failed to place any kind of document on that very score as well as failed to prove with independent witness. On the other hand have stated that they happen to be member of a political party (CPM) and they claimed their right of Bataidari on account of putting and fixing of party‟s flag over the land. So, the claim of Bataidari had gone. In the background aforesaid deficiency, their activity happens to be illegal by having greedy eye over the land of the Ajit Bhagat and during course thereof, they have admitted that female members were in front row while the males were behind and during course thereof, from the firing having made by their counterpart females, sustained injuries as a result of which Kushmi died while others have sustained injuries and for that, appellants could not be held guilty. In an alternative, it has also been pleaded that after scrutinizing the evidence, it is evident that, even accepting 6. the allegation for an argument sake, was in due exercise of right of private defence, which was exercised with utmost care and caution. That being so, the judgment of conviction and sentence is found completely soaked with illegality whereupon, is fit to be set aside.
8. On the other hand, the learned Additional Public Prosecutor counter meeting with the submission made on behalf of appellants has submitted that from the judgment impugned it is apparent that learned lower court was very much confused with regard to proper appreciation of ingredients of Section 149 of the IPC and that happens to be reason behind that even though appellants have been found guilty under Section 307/149 of the IPC, rejected the the application of Section 149 IPC relating to other offences, more particularly under Section 302 IPC, even observing that in same sequence murder of Kusumi was committed. It is true that no appeal at the end of State has been filed on that ground would not give any kind of escape to the judgment impugned which is found apparently, illegal, perverse and so, it be set aside remitting the matter to the learned lower court to hear afresh and pass fresh judgment in accordance with law.
9. From the record, it is manifest that during course of commission of crime whereunder firing was made costing life of Kusumi as well as injuries over the person of others, the learned lower court acquitted the appellants including others (Md. Chhote 7. and Jafirul Islam @ Raja since acquitted) for an offence punishable under Section 302/149 IPC and the reason thereof has been recorded under para-23, 24 which has not been challenged at the end of prosecution, wherein it has been observed that as landlord/co-sharer Ajit Bhagat against whom an allegation has been attributed to cause murder of Kusumi by shooting her is not on the record as investigation is going on against him on account thereof, other co- accused could not be convicted and sentenced attracting Section 302/149 IPC. In likewise manner, while recording acquittal of Md. Chhote and Jafirul Islam @ Raja observed that as patta co-relates Kari and Alamgir so they are not to be identified sharing common object in spite of presence of ample material against them.
10. From perusal of the judgment impugned, it is further apparent that learned lower court had observed that there happens to be no inconsistency in the evidence of the doctor, PW.1, PW.9 respectively and that being so, death of Kushmi Devi on account of firearm injuries as well as sustaining of firearm injuries by the other witnesses goes out of controversy. Now coming to propriety of the judgment, the relevant para, para-21, 20, 23, 24 and 25 along with para-30 have been minutely gone through. From para-32 of the judgment, it is apparent that learned lower court had perceived the evidence of the injured witnesses that a mob consisting of 200-300 persons armed variously came, out of whom they identified Ajit Bhagat, Ravi Bhagat, Alamgeer, his two brother, Kari, Chhote, 8. Sahabuddin, Raja and seeing the members of the prosecution party they began to fire aiming them in order to kill and during course thereof, firing having made by Ravi Bhagat proved fatal as a result of which Kushma Devi, succumb. The firing having made by other co- accused including the appellants caused injuries to the respective witnesses. It is further evident from the format of the charge that so far 302/149 is concerned that relates with murder of Kushma Devi and so far 307/149 is concerned that relates with causing murderous attack upon the respective injured. The learned lower court gave finding that as Ravi Bhagat and Ajit Bhagat were not on record in the background of pendency of investigation against them and so, the allegation against them having attributed by the prosecution witnesses could not be tested whereupon, finding relating thereto would not be given. In likewise manner discussing event in summary manner had observed that 302/149 IPC would not be permissible and in the aforesaid background left the issue un-arrayed. In likewise manner, in para-25 had convened relating to appellants observing that others complicity on account of non-assailant would not be permitted.
11. In order to properly appreciate the finding recorded by the learned lower court, first of all the relevant provisions have to be taken note of:
"Section 141 IPC:-
141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-9.
First.-To overawe by criminal force, or SHOW of criminal force, 10*[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second.-To resist the execution of any law, or of any legal process; or Third.-To commit any mischief or criminal trespass, or other offence; or Fourth.-By means of criminal force, or SHOW of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.-By means of criminal force, or SHOW of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.-An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
"Section 149 IPC: 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."
12. In Masalti Vs. State of U.P. reported in AIR 1965 SC 202 it has been held:
"Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all 10. of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 per- sons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task: but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not."
13. In Gangadhar Behera & Ors. Vs. State of Orissa reported in (2002) 8 SCC 381 it has been held:
"Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident."
14. Furthermore, in Daya Kishan Vs. State of Haryana reported in (2010) 5 SCC 81; Sikandar Singh Vs. State of Bihar reported in (2010) 7 SCC 477, State of U.P. Vs. Krishanpal & Ors. 11. reported in (2008) 16 SCC 73, Debashis Daw Vs. State of W.B. reported in (2010) 9 SCC 111, and Ramachandran & Ors Vs. State Of Kerala reported in (2011) 9 SCC 257, it has been held that once it is established that the unlawful assembly had a common object, it is not necessary that all the persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the offence, raised upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object.
15. As observed above, there happens to be acquittal of appellants along with Chhote and Raja for an offence punishable under Section 302/149 IPC. There also happens to be acquittal of Chhote and Raja relating to 307/149 IPC. It is also apparent that prosecution had not challenged those finding. However, the judgment impugned has been challenged at the end of convicts and once judgment is before the appellant court, it has to be dealt with n a manner as prescribed under Section 386 Cr.P.C. For better appreciation, the same is quoted below:
"386. Powers of the Appellate Court.-- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, 12. or may--
(a)in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b)in an appeal from a conviction--
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c)in an appeal for enhancement of sentence--
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d)in an appeal from any other order, alter or reverse such order;
(e)make any amendment or any consequential or incidental order that may be just or proper:
Corresponding Law: S. 423(1) of Act V of 1898.
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Corresponding Law: S. 423(1-A) Proviso of Act V of 1898.
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal."
16. In Shamnsaheb M. Multtani v. State of Karnataka reported in (2001) 2 SCC 577, it has been held:
13.
"24. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.
32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration: If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B IPC read with Section 113-B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304-B IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal.
33. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304-B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law.
34. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304- B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304-B 14. IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the court affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304-B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption.
35. As the appellant was convicted by the High Court under Section 304-B IPC, without such an opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under Section 304-B IPC."
17. In Vinod Kumar v. State of Punjab reported in (2015) 3 SCC 220, it has been held:
"3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question: Is it justified for any conscientious trial Judge to ignore the statutory command, not recognise "the felt necessities of time" and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracising the concept that a civilised and orderly society thrives on the rule of law which includes "fair trial" for the accused as well as the prosecution?"
18. In Rattiram v. State of M.P. reported in (2012) 4 SCC 516, it has been held:
"39. The question posed by us fundamentally relates to the non-compliance with such interdict. The crux of the matter is whether it is such a substantial interdict which impinges upon the fate of 15. the trial beyond any redemption or, for that matter it is such an omission or it is such an act that defeats the basic conception of fair trial. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favouritism."
19. In Pooja Pal v. Union of India reported in (2016) 3 SCC 135, it has been held:
"53. This Court in the above disquieting backdrop in Zahira Habibulla Sheikh case (2004) 4 SCC 158, did underline that discovery, vindication and establishment of truth were the avowed purposes underlying the existence of the courts of justice. Apart from indicating that the principles of a fair trial permeate the common law in both civil and criminal contexts, this Court underscored the necessity of a delicate judicial balancing of the competing interests in a criminal trial--the interests of the accused and the public and to a great extent that too of the victim, at the same time not losing the sight of public interest involved in the prosecution of persons who commit offences.
54. It was propounded in Zahira Habibulla case(2004) 4 SCC 158 that in a criminal case, the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community and are harmful to the society in general. That the concept of fair trial entails the triangulation of the interest of the accused, the victim, society and that the community acts through the State and the prosecuting agency was authoritatively stated. This Court observed that the interests of the society are not to be treated completely with disdain and as persona non grata. It was remarked as well that due administration of justice is always viewed as a continuous process, not confined to the determination of a particular case so much so that a court must cease to be a mute spectator and a mere recording machine but become a participant in the 16. trial evincing intelligence and active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community.
55. In Zahira Habibulla case(2004) 4 SCC 158 while highlighting the courts‟ overriding duty to maintain public confidence in the administration of justice, it was enunciated as well that they cannot turn a blind eye to vexatious and oppressive conduct, discernable in relation to the proceedings. That the principles of rule of law and due process are closely linked with human rights protection, guaranteeing a fair trial, primarily aimed at ascertaining the truth, was stated. It was held as well that the society at large and the victims or their family members and relatives have an inbuilt right to be dealt fairly in a criminal trial and the denial thereof is as much injustice to the accused as to the victim and the society.
56. ... ... ... ... ... ... ... ...
57. It was underlined in Zahira Habibulla case(2004) 4 SCC 158 that if ultimately the truth is to be arrived at, the eyes and ears of justice have to be protected so that the interest of justice do not get incapacitated in the sense of making the proceedings before the courts, mere mock trials. While elucidating that a court ought to exercise its powers under Section 311 of the Code and Section 165 of the Evidence Act judicially and with circumspection, it was held that such invocation ought to be only to subserve the cause of justice and the public interest by eliciting evidence in aid of a just decision and to uphold the truth. It was proclaimed that though justice is depicted to be blindfolded, it is only a veil not to see who the party before it is, while pronouncing judgment on the cause brought before it by enforcing the law and administer justice and not to ignore or turn the attention away from the truth of the cause or the lis before it, in disregard of its duty to prevent miscarriage of justice. That any indifference, inaction or lethargy displayed in protecting the right of an ordinary citizen, more particularly when a grievance is expressed against the mighty administration, would erode the public faith in the judicial system was underlined. It was highlighted that the courts exist to do justice to the persons who 17. are affected and therefore they cannot afford to get swayed by the abstract technicalities and close their eyes to the factors which need to be positively probed and noticed. The following statement in Jennison v. Baker (1972) 2 WLR 429, was recalled:
(QB p. 66) "... „The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.‟"
58. It was declared in Zahira Habibulla case(2004) 4 SCC 158 that the courts have to ensure that the accused persons are punished and that the might or the authority of the State is not used to shield themselves and their men and it should be ensured that they do not wield such powers, which under the Constitution has to be held only in trust for the public and society at large. That if any deficiency in investigation or prosecution is visible or can be perceived by lifting the veil covering such deficiency, the courts have to deal with the same with an iron hand appropriately within the framework of law, was underlined.
59. Referring to its earlier decision in Karnel Singh v. State of M.P. (1995) 5 SCC 518, it was reiterated that in a case of a defective investigation, the court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 of the Code or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It recalled as well its observations in Ram Bihari Yadav v. State of Bihar(1998) 4 SCC 317 that the courts are installed for justice-oriented mission and thus, if a negligent investigation or omissions or lapses due to perfunctory investigation are not effectively rectified, the faith and confidence of the people would be shaken in the law-enforcing agency and also in the institution devised for administration of justice.
20. From the judgment impugned it is crystal clear that he learned lower court had completely misconstrued the legal position, more particularly when the main assailant Ajit Kumar has not been 18. acquitted observing that he was not a member of an unlawful assembly rather, he was not put on trial as investigation was kept pending against him, moreover, having the presence of ample material on record could have justified invoking of Section 319 Cr.P.C. which happens to be permissible in the eye of law as held by the Constitution Bench in Hardeep Singh Vs. State of Punjab reported in (2014) 3 SCC 92, and the same might have been exercised.
21. Furthermore, from the judgment impugned it is also manifest that the reasons so assign for acquittal of Chhote and Raja also happens to be contrary to the spirit of law.
22. Now the question arose, what kind of option the appellate court (High Court) has, whether it should keep its lip closed silently watching the illegal order being in hapless condition or is legally empowered to pass appropriate order. In Krishnan & Anr vs Krishnaveni & Anr reported in (1997) 4 SCC 241, it has been held:
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or 19. misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order."
23. In State of Punjab vs. Kasturi Lal, reported in (2004) 12 SCC 195:
"10. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of 20. justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
24. In Surya Baksh Singh vs State Of U.P reported in (2014) 14 SCC 222, it has been held:
"6. Section 386 CrPC is of importance for the purposes before us. It requires the appellate court to peruse the records, and hear the appellant or his pleader if he appears; thereafter it may dismiss the appeal if it considers that there is insufficient ground for interference. In the case of an appeal from an order of acquittal (State appeals in curial parlance) it may reverse the order and direct that further inquiry be carried out or that the accused be retried or committed for trial. Even in the case of an appeal from an order of acquittal the appellate court is competent to find him guilty and pass sentence on him according to law. The proviso to this section prescribes that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such a proposal, thereby mandating that an accused must be present and must be heard if an order of acquittal is to be upturned and reversed. It is thus significant, and so we reiterate, that the legislature has cast an obligation on the appellate court to decide an appeal on its merits only in the case of death references, regardless of whether or not an appeal has been preferred by the convict.
7. Last, but not the least in our appreciation of the law, Section 482 CrPC stands in solitary splendour. It preserves the inherent power of the High Court. It enunciates that nothing in CrPC shall 21. be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary, firstly, to "give effect to any order under CrPC", words which are not to be found in the Code of Civil Procedure, 1908 (hereafter referred to as "CPC"). Ergo, the High Court can, while exercising inherent powers in its criminal jurisdiction, take all necessary steps for enforcing compliance with its orders. For salutary reason Section 482 CrPC makes the criminal court much more effective and all pervasive than the civil court insofar as ensuring obedience of its orders is concerned. Secondly, Section 482 clarifies that CrPC does not circumscribe the actions available to the High Court to prevent abuse of its process, from the inception of proceedings till their culmination. Judicial process includes compelling a respondent to appear before it. When the Court encounters a recalcitrant appellant/convict who shows negligible interest in prosecuting his appeal, none of the sections in Chapter XXIX CrPC dealing with appeals, precludes or dissuades it from dismissing the appeals. It seems to us that passing such orders would eventually make it clear to all that intentional and repeated failure to prosecute the appeal would inexorably lead not merely to incarceration but more importantly to the confirmation of the conviction and sentence consequent on the dismissal of the appeal. Thirdly, none of the provisions of CrPC can possibly limit the power of the High Court to otherwise secure the ends of justice. While it is not possible to define the concept of "justice", suffice it to say that it encompasses not just the rights of the convict, but also of the victims of crime as well as of the law abiding section of society who look towards the courts as vital instruments for preservation of peace and the curtailment or containment of crime by punishing those who transgress the law. If the convicts can circumvent the consequence of their conviction, peace, tranquillity and harmony in society will be reduced to a chimera. Section 482 emblazons the difference between preventing the abuse of the jural process on the one hand and securing of the ends of justice on the other. It appears to us that Section 482 CrPC has not been given due importance in combating the rampant malpractice of filing appeals only for scotching sentences imposed by criminal courts.22.
25. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction already articulated by this Court on several occasions motivates us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and thereafter wilfully to become untraceable or unresponsive. It is the bounden duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to become a mute spectator to the spectacle of the convict circumventing his conviction. (See Stirland v. Director of Public Prosecutions 1944 AC 315, quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC 271) If the court is derelict in doing its duty, the social fabric will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by the expeditious disposal of appeals. The inherent powers of the High Court, poignantly preserved in Section 482 CrPC, can also be pressed into service but with care, caution and circumspection."
25. It is settled principle of natural justice that no man should be condemned without being heard (Audi Alterum Partem). On account thereof, the appellants as well as Chhote and Jafirul Islam @ Raja are show caused, why not their acquittal under Section 302/149 IPC be set aside, and in likewise manner, against Md. Chhote and Jafirul Islam @ Raja for an offence punishable under Section 307/149 IPC. Office to issue show-cause accordingly. However, it is made clear that the appellants will have a right to plead for acquittal as held by the Apex Court on Pilot U.J.S. Chopra vs State Of Bombay reported in AIR 1955 SC 633.
23.
26. Because of the fact that Section302/149 prescribes minimum sentence of life imprisonment hence as per Patna High Court Rules, the same is to be heard by the Division bench. On account thereof, office is direction to list before Division bench after getting permission from Hon‟ble the Chief Justice.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE 04.10.2017
Uploading Date 15.11.2017
Transmission 15.11.2017
Date