Karnataka High Court
Ghayur Ahmad Jamali vs State Of Karnataka on 23 June, 2022
Bench: K.Somashekar, Shivashankar Amarannavar
R
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.1882 OF 2021
BETWEEN:
1. GHAYUR AHMAD JAMALI
S/O NASRULLA JAMAL JAMALI
AGED ABOUT 29 YEARS
R/AT: AARKI HALLI
POLICE STATION
MADHUBHANI DISTRICT
BIHAR STATE -847239 .
2. AFTAB ALAM @ FAROOQ
S/O SHEIKH MOHAMMED AYUB
AGED 32 YEARS
R/O: DINESH BALWA POST
ADHANG, JALALGARH THANA
PURMIA DISTRICT
BIHAR STATE -854327.
...APPELLANTS
(BY SRI.MOHAMMED TAHIR, ADVOCATE)
AND:
STATE OF KARNATAKA
BY CUBBON PARK POLICE
BANGALORE
REP. BY STATE PUBLIC PROSECUTOR
2
ADVOCATE GENERAL OFFICE
HIGH COURT COMPLEX
BANGALORE -560 001.
..RESPONDENT
(BY SRI.V.S.HEGDE, SPP-II A/W SRI.P.THEJESH, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
21 OF NIA ACT READ WITH 375(b) OF CR.P.C. PRAYING
TO:
SET ASIDE THE CONVICTION ORDER DATED
18.11.2021 AND SENTENCE ORDER DATED 25.11.2021
PASSED IN S.C.No.868/2013 BY THE XLIX ADDITIONAL
CITY CIVIL AND SESSIONS (SPECIAL COURT FOR TRIAL
OF NIA CASES) (CCH-50) JUDGE AT BANGALORE AT
ANNEXURE-A, WHEREIN LEARNED SESSIONS JUDGE
SENTENCES THE APPELLANTS IN 13 COUNTS AND
ALONG WITH IMPRISONMENT OF LIFE UNDER SECTION
121 OF IPC, CONSEQUENTLY REJECTED THE PLEAD
GUILTY APPLICATION UNDER SECTION 229 OF CR.P.C.
SAME AT ANNEXURE-B.
THIS CRIMINAL APPEAL COMING ON FOR
DICTATING JUDGMENT, THIS DAY, K.SOMASHEKAR J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned order passed by the XLIX Additional City Civil and Sessions Judge/Special court for trial of NIA cases, Bengaluru, 3 dated 18.11.2021 and order of sentence dated 25.11.2021, convicting the appellants/accused Nos.3 and 4 in respect of the following offences:
(1) For the punishable under Section 20 of the Unlawful Activities (Prevention) Act, 1967, accused were sentenced to undergo simple imprisonment for seven years and to pay fine of Rs.5,000/- each.
In default to pay fine amount they shall undergo further imprisonment for two months.
(2) Accused shall undergo rigorous imprisonment for eight years for the offence punishable under Section 120B of IPC and sentenced to pay a fine of Rs.10,000/- each, in default to pay fine amount they shall undergo further simple imprisonment for three months.
(3) They shall undergo rigorous imprisonment for ten years for the offence punishable under Section 121A of IPC and sentenced to pay a fine of Rs.10,000/- each. In default to pay fine amount they shall undergo further simple imprisonment for three months.
(4) They shall undergo simple imprisonment for five years for the offences punishable under Section 18 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to pay fine amount of 4 Rs.5,000/- each. In default to pay fine amount they shall undergo simple imprisonment for two months.
(5) They shall undergo simple imprisonment for six years for the offences punishable under Section 120B, 121A of IPC and so also for the offence punishable under Section 18 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to pay fine amount of Rs.5,000/- each. In default to pay fine amount they shall undergo further simple imprisonment for two months.
(6) They shall undergo rigorous imprisonment for life for the offences punishable under Section 121 of IPC read with Sections 120B and 121A of IPC and Section 18 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to pay fine amount of Rs.25,000/- each. In default to pay fine amount they shall undergo simple imprisonment for six months.
(7) They shall undergo simple imprisonment for five years for the offence punishable under Section 13(1)(a) of the Unlawful Activities (Prevention) Act, 1967 read with Section 120B and 121A of IPC under Section 18 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to pay fine 5 amount of Rs.5,000/- each. In default to pay fine amount they shall undergo further simple imprisonment for two months.
(8) They shall undergo rigorous imprisonment for five years for the offence punishable under Section 16(1)(b) of Unlawful Activities (Prevention) Act, 1967 read with Section 120B and 121A of IPC and Section 18 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to pay fine amount of Rs.5,000/- each. In default to pay fine amount they shall undergo simple imprisonment for two months.
(9) They shall undergo rigorous imprisonment for seven years for the offences punishable under Section 307 of IPC read with Sections 120B and 121A of IPC and under Section 18 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to pay fine amount of Rs.10,000/- each. In default to pay fine amount they shall undergo further simple imprisonment for three months.
(10) They shall undergo rigorous imprisonment for seven years for the offence punishable under Section 4(a) of the Explosive Substances Act of 1908 read with Sections 120B and 121A of IPC and Section 18 of Unlawful Activities (Prevention) 6 Act, 1967 and sentenced to pay fine amount of Rs.5,000/- each. In default to pay fine amount they shall undergo further simple imprisonment for two months.
(11) They shall undergo rigorous imprisonment for five years for the offence punishable under Section 5(b) of Explosive Substances Act of 1908 read with Sections 120B and 121A of IPC and Section 18 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to pay fine amount of Rs.5,000/- each. In default to pay fine amount they shall undergo further simple imprisonment for two months. (12) They shall undergo simple imprisonment for seven years for the offence punishable under Section 6 of Explosive Substances Act of 1908 read with Sections 120B and 121A of IPC and Section 18 of the Unlawful Activities (Prevention) Act, 1967 and sentenced to pay fine amount of Rs.5,000/- each. In default to pay fine amount they shall undergo further simple imprisonment for two months.
(13) They shall undergo simple imprisonment for three years for the offence punishable under Section 201 of IPC read with Sections 120B and 121A of IPC and Section 18 of the Unlawful 7 Activities (Prevention) Act, 1967 and sentenced to pay fine amount of Rs.3,000/- each. In default to pay fine amount they shall undergo further simple imprisonment for one month.
2. However, all the substantive sentences are ordered to run concurrently. The accused Nos.3 and 4 were entitled for the benefit of set off of the imprisonment undergone by them during the enquiry and trial of this case under Section 428 of Cr.P.C.
3. Whereas in this appeal the appellants said to be arraigned as accused Nos.3 and 4 are seeking setting aside of the impugned Judgment rendered by the trial court by held conviction against accused by rejection of the application filed under Section 229 of Cr.P.C for plead guilty. Therefore, the learned counsel for the appellant/accused Nos.3 and 4 seeking intervention of this court in this appeal by consideration of the grounds urged therein and seeking setting aside the impugned order passed by the XLIX Additional City Civil and Sessions Judge/Special court for trial of NIA cases at Bengaluru vide Annexure A and B and seeking such other directions 8 as deemed fit under the given facts and circumstances of the case where the accused are facing trial for the offence which is stated in the aforesaid case.
4. Factual matrix of this appeal are as under:
It has transpired in the case of the prosecution by dwelling in the charge sheet laid by the Investigation officer relating to the case in Crime No.92/2010 and whereby the Cubbon Park Police Station, Bengaluru City, registered the crime independently by recording an FIR and also maintaining substances of involvement of perpetrators being arraigned as accused. But these appellants/accused Nos.3 and 4 were apprehended by the Delhi Police in May, 2011 in connection with Crime No.54/2011 of Delhi Police (Special Cell) but based on his disclosure statement, Bengaluru City police i.e., Cubbon Park Police apprehended the accused in Crime No.92/2010 and taken them to the police custody on 23.02.2012 after producing them before the Jurisdictional Magistrate, subsequently also taken them to the custody in a different crime but for the benefit of looking into area of prosecution in terms of a 9 charge sheet laid by the investigating officer, it is deemed appropriate to refer the different crime numbers also wherever it is required. But allegation against the alleged accused Nos.3 and 4 that they also colluded with the main accused Nos.1 and 2, prepared IED at Tumkur along with accused Nos.1 and 2 and brought the prepared IEDs to Bengaluru in their company which subsequently planted by the accused Nos.1 and 2 in Chinnaswamy Stadium in Bengaluru City.
5. The criminal law was set into motion only after apprehending accused Nos.3 and 4 alleging that these accused had also colluded with the main accused Nos.1 and 2. Consequent to set the law into motion by recording an FIR, the investigation officer has taken up the case for investigation and investigation has been done thoroughly and during investigation, the investigating agency has recorded the statement of witnesses and so also collected the material documents and so also drew the mahazar in the presence of the panch witnesses and made the charge sheet against the accused before the committal court. 10 However, these appellants were arraigned as accused Nos.3 and 4 and the charge sheet has been laid against the accused for the offences which reflected in the operative portion of the order whereby the trial court has passed an order by considering their application filed under Section 229 of Cr.P.C and whereby seeking for pleading their guilt in respect of the offences. It is this impugned order in terms of a sentence passed by the trial court in S.C.No.868/2013 which has been challenged under this appeal by making use of the provision of Section 21 of NIA Act read with Section 375(b) of Cr.P.C. It is relevant to refer the sentencing as held by the trial court by considering their application filed under Section 229 of Cr.P.C. and conviction has been held against them vide impugned order of conviction dated 18.11.2021 and order of sentence dated 25.11.2021 by the Special court in S.C.No.868/2013 vide Annexure-A.
6. Heard the learned counsel Sri.Mohammed Tahir for appellants/ accused Nos.3 and 4 namely Ghayur Ahmad Jamali and Aftab Alam @ Farooq. So also, learned SPP-II namely Sri.V.S.Hegde for the State. Perused the 11 impugned order in terms of a sentence passed by the trial court in S.C.No.868/2013.
7. Whereas learned counsel Sri.Mohammed Tahir for appellants/ accused Nos.3 and 4 has taken us through the involvement of these accused as alleged in the complaint/report and also charge sheet materials. But these appellants who are arraigned as accused Nos.3 and 4 pleaded guilty and accepted the stigma of conviction held against them. But they filed an application under Section 229 of Cr.P.C. for pleading guilty in respect of the offences with an intention of closing their case to join with their family members consisting of old age parents who are sufferers with some old age ailments. The appellants being accused in the aforesaid case were brought at the rural area of North Bihar and they never involved in any criminal activities as alleged but to foist a case against them by recording an FIR and so also they have been implicated in several other cases also and they are languishing in jail without any effective trial in the court of law. 12
8. The second limb of arguments advanced by the learned counsel for appellants relating to the impugned order passed by the trial court in respect of an application filed by them under Section 229 of Cr.P.C for pleading guilty and they filed other application seeking early release from that case on the ground that they wanted to see their parents who are suffering from old age ailments. But the trial court, even without considering the application filed by them under Section 229 of Cr.P.C for plead guilty but only on the basis of the decision of the Hon'ble Apex Court in the case of State of Maharashtra Vs Sukhdeo Singh and anr reported in (1992)3 SCC 700 whereby extracting paragraph 52 of the Judgment rendered which is self explanatory about the power of the court to accept the plea but the same is not observed in the aforesaid case whereby accused Nos.3 and 4 are the appellants and they were pleaded guilty by filing an application under Section 229 of Cr.P.C. However, it infers that appellants arraigned as accused Nos.3 and 4 have filed an application for plead guilty and same has been filed by them due to some frustration reminding an earlier order of conviction of co- 13 accused who received the lesser sentence and receiving their liberty. These grounds were also urged by the learned counsel for appellants for seeking intervention in the impugned Judgment rendered by the trial court in terms of rendering a sentence in all 13 counts of an offence respectively.
9. The last limb of arguments advanced by the learned counsel for appellants by referring the Judgment of Sukhdeo Singh but it is entirely different from the case which is pending against the accused Nos.3 and 4, so also whereby the accused were facing up trial and but by filing application for plead guilty the accused were convicted in terms of a sentence held as it appears to be exorbitant and no lenient view has been taken by the court below. But the said case of Sukhdeo Singh whereby accused were convicted after full fledged trial before the trial court but after rejecting their plea at first instance but subsequently before the Hon'ble Apex Court again accused pleaded guilty. Thus, accepting the plea the Hon'ble Apex Court passed the order in terms of a sentence. Whereas neither 14 trial is concluded and even for hope of integrating with family of accused who pleaded guilty in respect of offences whereby the accused are facing up trial. Even during enquiry in respect of the offences legged against the accused and whereby the trial court never expressed in explicit words that the court has no option in the nature of already framed charge to show leniency in sentence. In the instance case also accused Nos.3 and 4 filed application under Section 229 of Cr.P.C for seeking plead guilty and for seeking leniency. The same has not been considered by the trial court by rendering conviction in terms of a sentence which reflected in the operative portion of the order. Therefore, on the aforesaid reliance's in conformity with the grounds already urged in this appeal it requires intervention if not intervened certainly the gravamen of the accusation would be the sufferers and also some substantial miscarriage of justice would be extended to the accused.
10. It is further contended that in view of the several citations rendered to that aspect of the scope of Section 15 229 of Cr.P.C the court should not act upon the guilty in a serious offence but should proceed to take the evidence as if the pleadings had been one of not guilty and should decide the case upon whole evidence including accused plea. Whereby the grounds which has been urged in this appeal the learned counsel emphasizes in his arguments relating to the Judgments of various High courts vide Annexure-E it is for kind perusal of this court relating to this appeal for seeking intervention.
11. The appellant being arraigned as accused Nos.3 and 4 but making an application before the trial court in the aforesaid case for pleading guilty but in this appeal urging the various grounds and seeking for intervention and to setting aside the impugned order passed by the trial court by rendering conviction in terms of a sentence as exorbitant. On all these premises, the learned counsel for appellants emphatically submitting for seeking intervention by consideration of the grounds as urged and also ratio of the reliance and setting aside the impugned order in respect of conviction dated 18.11.2021 and passing in 16 terms of a sentence dated 25.11.2021 vide Annexure-A and Annexure-B respectively in the prayer column relating to the case in SC No.868/2013.
12. Whereas the learned SPP-II namely Sri.V.S.Hegde stoutly addressed the arguments for the State and even countered the arguments advanced by the learned counsel for appellants/ accused Nos.3 and 4. The charges levelled against the accused for the offences under Section 121, 120B and 121A and Section 13(1)(A) and 16(1)b) and Section 4(a) of the Unlawful Activities (Prevention) Act, 1967 and so also the offence under Section 4(a) and Section 5(b), Section 6 of the Explosive Substances Act, 1908 and inclusive of Section 307 and so also Section 201 of Indian Penal Code, 1860. Criminal law was set into motion by registering a case in Crime No.54/2011 of Delhi Police (Special Cell) but based upon the disclosure statement made by perpetrators being arraigned as accused and then criminal law was set into motion by investigation to be carried by the investigating agency in Crime No.92/2010 whereby taken the accused Nos.3 and 4 17 to police custody for the purpose of investigation and whereby these accused Nos.3 and 4 being an association with accused Nos.1 and 2 and they are made the accused and also prepared IED at Tumkur along with aforesaid accused Nos.1 and 2 with an intention to plant them in Chinnaswamy Stadium at Bengaluru City. During the investigation the investigating agency has thoroughly investigation has been done and whereby laid the charge sheet against the accused in Crime No.93/2010 relating to S.C.No.869/2013. The accused Nos.3 and 4 are involved in heinous offences along with co-accused and also involved with various crimes whereby the investigating agency has thoroughly investigated and laid the charge sheet against the accused. But in SC No.868/2013 that accused Nos.3 and 4 being appellants they filed an application under Section 229 of Cr.P.C and filing an application for plead guilty for the offences which are legged against them and whereby permitting the accused to plead guilty for the offences at any stage of the cases and in their application they have stated and also contended that there is no express bar in any way in the Code of 18 Criminal Procedure. But for the application filed by accused Nos.3 and 4 that the trial court in S.C.No.868/2013 rendering in terms of conviction in respect of 13 counts of offences dated 25.11.2021 which reflected in the operative portion of the order but the application as filed by accused Nos.3 and 4, it is an application filed by them voluntarily by approaching their counsel for filing application for plead guilty. The said application was taken on record and also bring to the notice of the accused Nos.3 and 4 to consequences for consideration of the application but the accused persons through their counsel submitting that applications filed by them under Section 428 of Cr.P.C is required to be considered. Consequently their applications has been considered and rendering the conviction in respect of the offences i.e., in all 13 counts which reflected in the operative portion of the order. Therefore in this appeal it does not arise for call for any interference and no warranting circumstances would arise to intervene the impugned order passed by the trial court relating to rendering conviction and in terms of a sentence held 19 against the accused. The reasons that charge were read over and explained to them relating to the charges levelled against the accused and when it was brought to the notice of the accused relating to the consequences for consideration of their application filed under Section 229 of Cr.P.C. Therefore in this appeal it does not arise for call for any interference in terms of dwelling in detail about the materials which are collected by the investigation officer i.e., investigating agency in various levels.
13. The second limb of the arguments advanced by the learned SPP-II that there was no irregularities or any illegalities committed by the trial court relating to accepting the application filed by accused Nos.3 and 4 for plead guilty and even the scope of Section 229 of Cr.P.C and when once the accused have come forward to plead their guilt in terms of reasons has been assigned and when once it has been accepted by the trial court then the domain vested with the trial court to proceed for passing a conviction order and in terms of a sentence to proceed to passing keeping in view the sentencing policy. On this 20 premises also the learned SPP-II in the matter of an appeal and vehemently contending that there is no substance that would arise in this appeal even filed under Section 21 of the NIA Act read with Section 375 Clause (b) of Cr.P.C for challenging the legality of the sentence to that extent only for interference. But the offences under the Indian Penal Code, 1860 respectively against the accused so also the offences under the Unlawful Activities (Prevention) Act, 1967 and so also the offences under the Explosive Substances Act of 1908. Therefore, in this appeal it does not arise or call for any interference. On these premises, the learned SPP-II seeking for dismissal of this appeal being devoid of merits.
14. Even though the learned counsel for appellants facilitated the reliance which has been grounded in the appeal also and also the Co-ordinate Bench of this court has facilitated i.e., Crl.A.No.859/2020 clubbed with Crl.A.Nos.860/2020, 861/2020, 862/2020 and 863/2020 dated 22.03.2021 even though the appeal which is preferred by the State for seeking intervention to observe 21 the sentence to be passed against the accused persons but the appeals filed by the State were allowed and setting aside the Judgment of conviction and order of sentence rendered by the trial court in Crl.A.Nos.868/2013, 869/2013, 870/2013, 871/2013 and 872/2013 dated 22.06.2020 and also remanding the matters to the trial court for fresh consideration even for accused Nos.3 and 4 arraigned as respondents 1 and 2 in the aforesaid case but no consequences would arise for seeking intervention for consideration of the place of reliance rendered by the Co- ordinate Bench of this court. On this premises, the learned SPP-II for the State seeking for dismissal of this appeal being devoid of merits.
15. In the meanwhile, the learned SPP-II contending that the order passed by the Co-ordinate Bench of this court, it has attained finality. This submission made by the learned SPP-II is placed on record.
16. It is in this background that the contentions made by the learned counsel for appellants and so also stoutly addressing the arguments by the learned SPP-II for 22 the State, in this appeal is concerned, it is relevant to refer Section 375 (b) of Cr.P.C which reads as thus:
"375. No appeal in certain cases when accused pleads guilty.- Notwithstanding anything contained in Section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal.-
(a) if the conviction is by a High Court; or
(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence."
17. In the aforesaid provision of Cr.PC, Clause (b) of the said provision specifically states that except as to the extent or legality of the sentence. It means to say the sentence should be in accordance with law by following the certain provisions of Cr.P.C because the sentencing policy is an important domain vested with the sentencing court, that sentencing court has to follow the requisite provision of Cr.PC, if the conviction held and if the sentence has been held or even if the order has been held in the various charges levelled against the accused, it should be in accordance with law or if any or exorbitantly the sentence 23 has been held by sentencing court then only the provision Section 375 clause (b) it shall mandatorily the domain which is vested with the accused and whereby the gravamen of the accusation would be the sufferers even challenging that even though pleaded guilty even under Section 229 of Cr.P.C and whereby the jurisdiction vested with the Sessions Judge/Special Judge to deal with the matters in accordance with law and thereby accused has requested to facing up of the trial.
18. It is relevant to refer to Section 374 of Cr.P.C. which is akin to Section 375 of Cr.P.C. Section 374 Cr.P.C. states that any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. Clause 2 of Section 374 Cr.P.C. states that any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court. This is the 24 intent of Section 374 read with Section 375 of Cr.P.C relating to appeals from convictions and when the accused has pleaded guilty.
19. Section 229 of Cr.P.C relates to conviction on plea of guilty, which reads thus:
"229. Conviction on plea of guilty. If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon."
In his discretion means, the discretion should be exercised judicially, judiciously and cautiously, and in accordance with law and also the domain vested with the sentencing court or otherwise to say a sentencing Judge. This is the scope of Section 229 of Cr.P.C. relating to conviction and plea of guilty.
20. The concept of guilty or consent found guilty then only the initiation of the criminal prosecution against the accused by recording an FIR under Section 154 of Cr.P.C then follow the provision of Section 173(4) of Cr.P.C for investigation to be carried by the investigating agency and also laying up of charge sheet against the accused before 25 the concerned court having jurisdiction proceeding further in the charge sheet matters in accordance with law.
21. When once found guilty to recording an FIR and criminal law was set into motion and to proceed to follow the requisite provision of the Cr.P.C even though under the special enactments were also engaged the offences that were lugged against the accused, subsequent to filing of charge sheet against the accused, important stage is plead guilty. In a plead guilty it is in accordance with Chapter XVII trial before the court of Sessions. Section 228 relating to framing of a charge. Framing of a charge it is an important domain vested with the trial court having jurisdiction to deal with the matters, on prima facie material found in a charge sheet laid by investigation officer then only framing of a charge if not to proceed further in accordance with law.
22. Section 228 relating to framing of charges clause (2) -where the Judge frames any charge under clause (b) of sub-Section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he 26 pleads guilty of the offence charged or claims to be tried. The responsibility of framing of a charge is that of a court having a jurisdiction and it has to judicially consider the question of being sued, without fully adverting to the materials on record it must not blindly adopt the decision of the prosecution material. But the materials other than those which are produced by prosecution can also be looked into and should be considered at the time of framing of a charge to find out whether a prima facie case against the accused is made out or not. This is the scope of Section 228 of Cr.P.C.
23. Insofar as Section 229 of Cr.P.C it is relating to conviction on plea of guilty. Conviction on plea of guilty it means to say the accused voluntarily come forward by filing an application by making the reasons and that reasons should be acceptable and also justifiable and also it must be in the knowledge of accused to the consequences for plead guilty in a serious offence. Therefore even the accused has come forward to plead guilty. In the aforesaid provision the maker of the law, 27 has specifically stated if the accused pleads guilty, the Judge shall record the plea and may, it cannot be ease thereby meaning the word, in further as a discretion, but in his discretion he should exercise his power judicially, judiciously and cautiously keeping in view even Article 21 of the Constitution of India. The said Article 21 of the Constitution of India reads thus:
"21. Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law."
The personal liberty of a person being arraigned as an accused, could be convicted thereon only on the basis of plead guilty by the accused but the provision under Section 375 of Cr.P.C in clause (b) legality to that extent that a sentence held by the trial court has been challenged before the appellate court having jurisdiction to deal with the matters if any exorbitant sentence shall imposed by the trial court because of the reason Section 375(b) has been introduced by Code of Criminal Procedure looking into. 28
24. Section 53 of Indian Penal Code, 1860 Chapter III deals with the kinds of Punishments. The same reads thus:
"Punishments to which offenders are liable under the provisions of this code are firstly death, secondly imprisonment for life, fourthly imprisonment which is of two descriptions namely (1) Rigorous, that is, with hard labour; (2) Simple;
(Fifthly) --Forfeiture of property;
(Sixthly) --Fine."
25. In criminal jurisprudence there are three theories namely, (1) Reformative theory (2) Deterrent theory (3) Retributive theory. In reformative theory it is the theory in criminal jurisprudence relating to accused are facing up of trial, the trial is in accordance with law by giving an opportunity to the accused and also to the prosecution to prosecute the case against the accused in terms of examination-in-chief, cross examination, re-examination by following relevant provisions of Indian Evidence Act, 1872. Even if there is an ambiguity also there is a scope to the prosecution as well as defence counsel to clear the ambiguity that scope is only, if the witness enters into 29 witness box on admission of oath if not enter into witness box on admission of oath it is not possible to test the witness relating to the materials in terms of a statement or in terms of any documents secured by investigation officer or an investigating agency during the course of investigation to file any charge sheet against the accused. The reformative theory it is in terms of the reformative approach to the punishment should be the object of criminal law in order to promote rehabilitation, without offending communal conscience and secure the social justice. This issue was already addressed by the Hon'ble Apex Court in the case of Narotam Singh Vs State of Punjab and anr reported in AIR 1978 SC 1542.
26. Further, in criminal jurisprudence, there are three kinds of guilt namely,
i) found guilty,
ii) pleads guilty, and
iii) proved guilty.
Insofar as 'found guilty', the Investigating Agency, that is the Police Officer has the jurisdiction to register the 30 case under Section 154 of the Cr.P.C. by recording an FIR, keeping in view the concept of cognizance relating to cognizable offences.
Insofar as 'pleads guilty', this guilt arises only after laying the charge-sheet by the Investigating Agency by following the relevant provisions of Section 173(2) Cr.P.C. whereby the accused have come forward to plead guilty relating to the offences lugged against them as according to Section 229 of the Cr.P.C.
Insofar as 'proved guilty', it is only this concept which would arise in the criminal justice delivery system and it is only after giving an opportunity to both the prosecution as well as the defence counsel under the relevant provisions to prove the case against the accused under the relevant provisions of the Indian Evidence Act, 1872 and so also touchstone of Section 3 of the Indian Evidence Act, 1872 relating to the concept of 'proved', 'not proved' and 'dis- proved'. It is only based upon the evidence of the prosecution relating to the offences in the charge-sheet laid against the accused. But it is an important domain vested with the prosecution and so also the defence on the part of 31 the accused and equally a greater responsibility upon the Trial Court which has the domain to appreciate the evidence to arrive at a proper conclusion as regards the offences charged against the accused.
27. Whereas in the impugned Judgment of conviction/sentence rendered by the trial court in almost all 13 counts of an offence and whereby held sentence against the accused which is reflected in the operative portion of the order but all the substantial sentences shall run concurrently but section 428 of Cr.P.C were also to be stated in the operative portion of the order relating to set off. But Section 428 of Cr.P.C relating to set off, it means to say the period of detention undergone by the accused to be set off against sentence of imprisonment. The word `imprisonment' and also the word `punishment' it should be taken into consideration not in a common parlance it should be in accordance with in a given facts and circumstances of the case, but benefit of set off under section 428 of Cr.P.C is not available to life convicts. It is a Judgment rendered by the Hon'ble Apex Court in the case 32 of Kartar Singh and others Vs State of Haryana reported in AIR 1982 SC 1433. In a recent Judgment of the Hon'ble Apex court relating to life imprisonment thereby means life is a life and a natural life till her breath or till his breath. Therefore, it is difficult to define what is life and what is natural life. Therefore Section 428 of Cr.P.C which has been used by the trial Judge for set off, but the offences under Section 121 of IPC read with Section 120B and 121A of IPC and Section 18 of the Unlawful Activities (Prevention) Act, 1967 held conviction by the trial court that the appellants were arraigned as accused Nos.3 and 4, both shall undergo rigorous imprisonment for life for the aforesaid provision which is incorporated in the operative portion of the order. Therefore, the question of set off as under Section 428 of Cr.P.C cannot arise by exercising the power even though the power is vested with the trial court in the aforesaid provision in Code of Criminal Procedure. Section 428 Cr.P.C., reads thus:
"428. Period of detention undergone by the accused to be set off against the sentence or imprisonment.33
Where an accused person has, on conviction, been sentenced to imprisonment for a term 1 , not being imprisonment in default of payment of fine], the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, any, of the term of imprisonment imposed on him."
It is only facing of trial by securing witnesses who are cited in the charge sheeted materials and the witness shall be subjected to oath and give evidence in terms of examination-in-chief and also in terms of cross examination in accordance with Section 137 of the Indian Evidence Act, 1872 meaning examination-in-chief and cross examination and re-examination. Section 137 of the Indian Evidence Act, 1872 reads thus:
137. Examination-in-chief.--The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examination.--The examination of a witness by the adverse party shall be called his cross- 34 examination. Re-examination.--The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re- examination."
Further, Section 138 of the Indian Evidence Act, 1872, reads thus:
"138. Order of examinations.--Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination.--The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re- examination, the adverse party may further cross- examine upon that matter."
Further, Section 141 of the Indian Evidence Act relates to leading questions, which reads thus:
"141. Leading questions.--Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question."35
Section 142 of the Indian Evidence Act states as to when they must not be asked. The same reads thus:
"142. When they must not be asked.--Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved."
Further, Section 143 of the Indian Evidence Act deals with when they may be asked. The said Section reads thus:
"143. When they may be asked.--Leading questions may be asked in cross-examination."
These are all the important provisions of the Indian Evidence Act, 1872 and these are the provisions are required to be followed by the trial court, not only the trial court it is a domain vested with and also equally to be followed by the prosecution as well as defence counsel to arrive at a right conclusion as against the offences lugged 36 against the accused. But in criminal justice delivery system these are all the important provisions that are required to be and also touched upon the prosecution bureau including the defence as well as trial court. Section 3 of Indian Evidence Act, 1872 deals with 'proved', 'not proved' and 'dis-proved'. But Section 4 of the Indian Evidence Act, 1872 deals with 'may presume', 'shall presume' and 'conclusive'. These are the important provisions in the Indian Evidence Act, 1872. Further, under Section 165 of Indian Evidence Act, the role and also the domain is vested with the trial Judge and the Judge has power to put questions or order production. But the Judge cannot ask question which may confuse, coerce or intimidate the witnesses but shall clarify in accordance with the relevant provisions of law. It was also addressed by the Apex Court in the case of Sidhartha Vashisht @ Manu Sharma Vs State (NCT of Delhi) reported in AIR 2010 SC 2352 but the Judge should not sit as a mute spectator or should not sit as a silent spectator, he should always be alert and he should always regulate the system of law keeping in view of the relevant provisions of Cr.P.C and relevant provisions of 37 Indian Evidence Act, 1872 relating to conclusion of the proceedings. Therefore Section 165 of Indian Evidence Act, 1872 has been enacted it was in the year 1872 but in the instant case, the appellants arraigned as accused Nos.3 and 4 and those accused have filed an application under Section 229 of Cr.P.C by assigning some reasons for plead guilty even securing service through their counsel but for the instructions given by them that application has been filed by the counsel for accused Nos.3 and 4. However, it must be dwell in detail about the materials and also the physical appearance of the accused in the court of law and also the accused condition that whether he has pleaded guilty without any coercion, threat or undue influence, even accused also come forward to plead guilty by making application under Section 229 of Cr.P.C, but the domain which is always vested with the trial court to proceed for consideration and also passing in terms of conviction/sentence and relating to each one of the accused. But in the instant case the operative portion reflected in all 13 counts of offences under Indian Penal Code, 1860 and so also offences under the Unlawful 38 Activities (Prevention) Act, 1967 and so also offences under the Explosive Substances Act, 1908. These are all the offences which are lugged against the accused are found to be serious in nature and mainly the offences under Section 121 of IPC read with Section 120B and 121A of IPC and so also Section 18 of the Unlawful Activities (Prevention) Act, 1967 even on that count of offence also the trial court rendered conviction/sentence that the accused Nos.3 and 4 shall undergo rigorous imprisonment for life for the aforesaid offences, which requires to be revisited.
28. In criminal jurisprudence there must be some just and fair trial to arrive at a conclusion as regards the offences which are charged against the accused. It is the domain vested with the trial court to proceed in accordance with the aforesaid relevant provisions of the Indian Evidence Act, 1872 and so also the relevant provisions of Code of Criminal Procedure. Therefore, in the instant appeal it is appropriate for and also requires intervention for the aforesaid reasons. If not intervened certainly no fair trial or just conclusion by a trial Judge. Consequently, in this appeal matter even though appeal is preferred by 39 accused Nos.3 and 4 under Section 21 of NIA Act, 2008 read with Section 375(b) of Cr.P.C. by challenging the impugned order, it is to the extent or legality of sentence. However keeping in view the aforesaid reasons and findings, we are of the opinion that the terms of a conviction/sentence deserves to be set aside. Accordingly we proceed to pass the following:
ORDER The appeal preferred by the appellants/accused Nos.3 and 4 under Section 21 of the NIA Act, 2008 read with Section 375(b) of Cr.P.C. is hereby allowed.
Consequently, the order in terms of a conviction and sentence passed by the court of XLIX Additional City Civil and Sessions Judge/Special Special Court for NIA cases in S.C.No.868/2013 dated 18.11.2021 and dated 21.11.2021 is hereby set aside. However, consequent upon setting aside the order of conviction/sentence passed by the trial court, the application filed by appellants/accused Nos.3 and 4 under Section 229 of Cr.P.C also stands rejected.
Ordered accordingly.40
However, in a given peculiar facts and circumstances of the matters relating to the offences involved by the accused, Accused Nos.3 and 4, who are appellants herein shall face trial before the Trial Court in the aforesaid case in S.C.No.868/2013. Accordingly directed.
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JUDGE Sd/-
JUDGE SBN