Ranchhodbhai Manjibhai Chovatia & vs Pravinbhai Kalubhai Italiya & on 5 January, 2016

[Cites 18, Cited by 1]

Gujarat High Court

Ranchhodbhai Manjibhai Chovatia & vs Pravinbhai Kalubhai Italiya & on 5 January, 2016

HC-NIC Page 1 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT By this writ-application under Article 226 of the Constitution of India, the applicants - original accused persons have prayed for the following reliefs :

"(A) Your Lordships may be pleased to issue an appropriate writ, order or direction to quash and set aside FIR being CR No.I-88 of 2012 dated 27.4.2012 registered with Chok Bazar Police Station, Surat city as well as charge-sheet dated 12.11.2014 bearing No.124/2014; and Criminal Case No.62511/2014 pending before the Hon'ble Court of Hon'ble 3rd Addi Civil Judge & J.M.F.C. qua the petitioners;

(B) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay further proceedings with respect to FIR being CR No.I-88 of 2012 dated 27.4.2012 registered with Chok Bazar Police Station, Surat city as well as charge-sheet dated 12.11.2014 bearing No.124/2014; and Criminal Case No.62511/2014 pending before the Hon'ble Court of Hon'ble 3rd Addi Civil Judge & J.M.F.C. qua the petitioners;

(C) An ex-parte ad-interim relief in terms of prayer (B) above may kindly be granted;

(D) Such other and further relief/s as may be deemed just and necessary in the facts and circumstances of the present case may kindly be granted."

The case of the prosecution may be summarised as under :

The respondent no.1 - original first informant is a resident of a society in the name of Dharmajivan Complex, situated at Bhagoli Cross Roads, Surat. On 27th April 2012, he lodged the FIR with the Chowk Bazar Police Station, Surat city, stating that on the date of the incident while he was standing near the main gate of the complex, about six to seven unidentified persons came over there and started demolishing, Page 2 of 16 HC-NIC Page 2 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT or rather, removing the iron grill which was fixed between the two societies i.e. Dharmajivan Complex and Gopinathji Society. The applicants herein are residents of the Gopinathji Society. The applicant no.1, aged 73, is the President of the said Society. It has been stated in the FIR that when the seven unidentified persons were trying to remove the grill, they were stopped, and in the process one of the persons hit a blow with an iron pipe on the left hand of the first informant, resulting in an injury. It is alleged that the seven persons who created trouble were sent by the residents of the Gopinathji Society, which included the two applicants herein.

It appears that one Kailashben, wife of Vipulbhai Gabani, also a resident of Dharmajivan Complex, who was present at the time of the incident, sustained injuries and had to be treated in the hospital.

The police, on completion of the investigation, filed charge-sheet for the offence punishable under Sections 141, 143, 144, 147, 325, 337, 188, 427 read with Section 114 of the Indian Penal Code. The filing of the charge-sheet culminated in Criminal Case No.62511 of 2014, pending as on today in the Court of the learned 3rd Additional Civil Judge and JMFC, Surat.

The applicants have come up with this writ-application, praying for quashing of the criminal proceedings.

Mr.Prabhav Mehta, the learned counsel appearing for the applicants, vehemently submitted that even if the entire case of the prosecution is believed to be true, no case worth the name is made out against the applicants herein. He submitted that indisputably at the time when the incident is alleged to Page 3 of 16 HC-NIC Page 3 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT have occurred the applicants were not present. He submitted that the applicants have been arraigned as accused persons only on the ground, or rather, the allegation that some time in the past they had threatened the first informant and the other prosecution witnesses of dire consequences on account of the ongoing dispute as regards the common plot of the society.

Mr.Mehta also pointed out that there is a Regular Civil Suit No.175 of 2012 filed by his clients, pending as on today, in the Court of the learned Civil Judge, Surat. He submitted that the report of the Commissioner makes the picture more than clear. Mr.Mehta submitted that indisputably when his clients were not present at the time of the incident and in the absence of anything else, they could not have been chargesheeted with the aid of Section 114 of the Indian Penal Code. In such circumstances referred to above, Mr.Mehta prays that the criminal proceedings deserve to be quashed so far as the two applicants herein are concerned.

On the other hand, this application has been vehemently opposed by Mr.Hardik H.Pandit, the learned counsel appearing for the respondent no.1 - original first informant. He fairly submitted that the two applicants herein were not present at the time of the incident. He also submitted that no overt act has been attributed to the two applicants herein by any of the witnesses whose statements are part of the charge-sheet. He, however, laid much stress on the fact that the seven persons who came at the place of the incident and created trouble were sent by the two applicants herein. He submitted that such assumption is drawn on the basis of some threats alleged to have been administered some time back by the two applicants herein to the prosecution witnesses. According to Page 4 of 16 HC-NIC Page 4 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT Mr.Pandit, the two applicants herein could be said to have abetted the commission of the offence. In such circumstances referred to above, Mr.Pandit prays that there being no merit in this application, the same be rejected.

Mr.H.K.Patel, the learned APP appearing for the State also opposed this petition and submitted that the two applicants herein are to be tried by virtue of Section 114 of the Indian Penal Code as they could be said to have abetted the commission of the offence. Mr.Patel laid much stress on Section 114 of the Indian Penal Code. Mr.Patel also submitted that in the course of the trial, ultimately if it is found that no case is made out, then the two applicants would be acquitted, or else even at the time of framing of the charge, the trial Court can alter or add or amend the charge accordingly.

Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the criminal proceedings should be quashed so far as the two applicants herein are concerned.

The following facts are not in dispute, or rather, admitted by the other side :

(1) There is a long standing dispute between the members of the two societies, viz. Dharmajivan Complex and Gopinathji Society situated adjacent to each other.

(2) The applicant no.1 herein as the President of the Gopinathji Society has filed a civil suit in the civil court, which is pending as on today.

(3) On the date of the incident, both the applicants were not present at the place of the occurrence.

Page 5 of 16

HC-NIC Page 5 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT (4) There is no allegation of any exhortation of any nature at any point of time by the applicants or any conspiracy or pre-plan or meeting of minds before the alleged incident.

(5) The two applicants have been named as the abettors because the first informant and the other prosecution witnesses believed that on account of being at inimical terms, probably the applicants must have sent the persons to remove the grill, which resulted in an assault.

In view of the above referred undisputed facts, the question that falls for my consideration is, whether Section 114 of the Indian Penal Code will have any application in the facts of the case.

Section 114 of the Indian Penal Code provides for the punishment of what is known in English Law as principal in the second degree. A person may remain absent at the place of occurrence and yet may abet the offence. He becomes liable under Section 109. He may again abet such offence and remains present at the place of occurrence. He becomes liable under this section. The principle is that if the nature of the act constitutes abetment then if the abettor remains present he is to be deemed to have committed the offence although another man has actually committed it. In other words, a person present abetting an offence will be deemed to have committed the offence. If a person instigates the principal offender to commit murder he abets the murder. If such abettor is away from the scene when the offence is committed he is charged under Section 109. If he is present he is charged under this section. Section 114 is only brought into operation when circumstances amounting to abetment of a particular crime Page 6 of 16 HC-NIC Page 6 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT have first been proved, and then presence of the accused at the commission of that crime is proved in addition.

A Division Bench of the Travancore-Cochin High Court, in the case of Aiyappan Kuttan v. The State, 1955 Cri.L.J. 1535, observed as under :

"...This section would apply to a case where a person abets the commission of an offence, some time before it takes place and happens to be present at the time when the offence is committed. It is not applicable to a case where the abetment is at the time when the offence takes place and the abettor helps in the commission. When a person who abets the commission of an offence is present and help in the commission of the offence, he is guilty of the offence and not merely of abetment except in a few cases like rape or bigamy...."

A Division Bench of the Nagpur High Court, in the case of Mangta v. Emperor, 38 Cri. L.J. 1937, observed as under :

"Their Lordships of the Judicial Committee point out that to overcome these difficulties and obviate a failure of justice in such cases, the law has spread its net wide. A number of provisions have been enacted, and though some of them may, to a certain extent, overlap, they have been designed to prevent loopholes of escape to guilty persons. One of these provisions is Section 34 of the Indian Penal Code. It applies when there is a common intention to commit a certain act, and when that is clear, there is no difficulty. In some cases there is another way of arriving at the same conclusion, as their Lordships explain under Section 114 :

"Whenever any person who, if absent, would be liable to be punished as an abettor is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to commit such offence. As Their Lordships observe when there has been an actual commission of the crime abetted and the abettor Page 7 of 16 HC-NIC Page 7 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT has been present thereat, his offence is not merely the offence of abetment with circumstances of aggravation, but becomes the very crime abetted because actual presence plus prior abetment can mean nothing else but participation and so the presumption raised by Section 114 brings the case within the ambit of Section 34...."

When therefore a number of persons are engaged in the commission of something criminal, all acting in furtherance of a common intention, each is of course punishable for what he has done as if he had done it by himself. That is obvious, and as their Lordships say such a proposition is not worth enacting :

"for if a man has done something criminal in itself, he must be punishable for it and none the less so that others were doing other criminal acts of their own at the same time and in furtherance of an intention common to them all."

But his liability does not end there for he is liable not only for the acts he himself does but also for those which he thereby facilitates, provided of course they are done in pursuance of the common intention. The case before the Judicial Committee proceeded no further than that for on the facts before their Lordships, it was not possible to do so. The finding there was that all the accused had shared the intention to murder, and so all were guilty of murder, even those who did nothing more than stand outside the door in readiness to repel possible assistance to their victim.

But the liability does not necessarily end there. There may be cases where, as here, the common intention is to do one act and then a different act is done. When this is so, and there has been prior abetment, each abettor is liable as an abettor for the crime actually committed, provided the conditions specified in Section 111 have been fulfilled. That of course applies when the abettor is not actually present at the crime. But when he is there, Section 114 comes into operation and makes him liable for the crime for which he would have been punishable "as an abettor" if he had not been there. As I have said, this position did not arise in the case before their Lordships, but they adumbrated its possibility at p.207 * Page 8 of 16 HC-NIC Page 8 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT "Of course questions arise in such cases as to the extent to which the common intention and the common contemplation of the gravest consequences may have gone."

The portion underlined (italicized) by me appears to envisage just such a situation. It would be illogical to hold otherwise. It is difficult to see why a man should be liable as an abettor for a more serious crime when he is not present, and not be responsible for the crime itself when he is there, although he had envisaged its probable consequences, and it is done either under the influence of the instigation or in pursuance of the conspiracy which constituted the abetment. A parallel is to be found in Section 149 in cases of riot and unlawful assembly. Each member of the assembly is liable not only for the acts done in furtherance of the common object, but also for acts which he knows were likely to be committed in the prosecution of that object.

The law then reduces itself to this. In offences of this nature each person is liable for all crimes committed in furtherance of the common intention. What that intention was and whether each accused shared it are questions of fact which must be determined afresh in each case with reference to the circumstances which exist there, and not with reference to what other Judges have decided in other cases on other facts. When, however, offences are committed which travel beyond the common intention, then each is still liable for these other offences, provided there has been prior abetment and provided he would have been liable as an abettor under Section 111, if he had not been present.

In the present case the object was to take Nanhi away from her husband by force, and to overcome resistence also by force. To this end the accused armed themselves with iron-shod lathies, weapons which can be, and often are, used with lethal effect. It is the common experience of all villagers that the least that can be expected in any affray of this nature is injuries which will amount to grievous hurt. I have, therefore, no doubt that the accused set out with the intention of inflicting injuries in the nature of grievous hurt. But there is more than that. It is also within the knowledge of the ordinary villager Page 9 of 16 HC-NIC Page 9 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT that when injuries in the nature of grievous hurt are multiplied, death is likely to ensue, and that it often does in these affrays. They may not realise that the actual cause of death is shock, but they know of the likelihood of a man losing his life by reason of such injuries. They also know the danger and likelihood of one of their number losing his head and exceeding the common intention either by inflicting a succession of heavy blows or by hitting a man on a vital part. This is all the more so when, as there, they have reason to expect opposition.

In the circumstances, when the expected happens, it is a probable consequence of the original conspiracy, and there can be no doubt that it is in pursuance of it. That being so, every member of the conspiracy who was not present at the actual occurrence would be liable under Section 111 as an abettor for the more serious crime, and if he is present, then he is liable for the crime itself, because of Section 114. In this case the crime is an offence under Section 302(2)."

A learned Single Judge of the Kerala High Court, P.Govinda Menon, J., in the case of Kochu Cherukka Panicker and another v. The State of Kerala, observed as under :

"8. Similarly I find that S. 114 also cannot be applied in this case. In order to bring a case within S. 114, I.P.C. the abetment must be complete, apart from, the presence of the abettor; in other words, the act of abetment must have taken place at a time prior to the actual commission of the offence and it is only when the abettor happens to be present at the time of the commission of the offence itself, that the operation of S. 114 would be attracted.

Reference may be made to the decision in Ram Ranjan Roy v. Emperor, ILR 42 Cal 422 : (AIR 1915 Cal 545) which was followed in In re Vijayaranga Naidu, ILR 51 Mad 263 : (AIR 1927 Mad 1115); Mian Gul v. Emperor, AIR 1932 Lah 483 and other cases. In an early case in Abhi Misser v. Lachmi Narain, ILR 27 Cal 566, the law on the subject has been laid down in the following terms :

"In order to bring a person within S. 114 of the Penal Code, it is necessary first to make oat the Page 10 of 16 HC-NIC Page 10 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT circumstances which, constitute abetment, so that if absent, he would have been liable to be punished as an abettor, and then to show that he was also present when the offence was committed."

9. As neither any community of intention nor any abetment prior to their presence at the spot has been established, on the record against accused 1 and 2, it has to be found that they cannot be found guilty of the offence committed by Sukumaran by calling in aid S. 114 of the Penal Code. It has not been stated as to what was the act of abetment which might be imputed to these appellants prior to their presence at the time when. Sukumaran beat and caused the death of Kuttan. The prosecution case was that it was the third accused who abetted accused 1 and 2 and Sukumaran to attack the deceased but the third accused has been found not guilty by the learned Judge and acquitted."

The Supreme Court, in the case of Mathurala Adi Reddy v. The State of Hyderabad, AIR 1956 SC 177, observed as under :

"...But if the evidence makes out no more than mere instigation, it is, even so, instigation by a person who is present at the scene of offence when the act is committed. In such a case the instigator is "deemed" to commit the murder by virtue of S. 114, Indian Penal Code.

As pointed out by Lord Sumner in 'AIR 1925 PC 1 (A)', "Actual presence plus prior abetment can mean nothing else but participation..."

A conspectus of the above referred case-law makes the position very clear that Section 114 of the Indian Penal Code is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition. The section is evidentiary not punitory. Because participation de facto may sometimes be obscure in detail, it is established by Page 11 of 16 HC-NIC Page 11 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT the presumption juris et de jure that actual presence plus prior abetment can mean nothing but participation. (See Mathurala Adi Reddy v. State of Hyderabad, AIR 1956 SC 177). The whole object of Section 114 of the Indian Penal Code provides for cases in which the exact share of several criminals cannot be ascertained, though the moral culpability of each is clear and identical.

The words "if absent would be liable to be punished as an abettor" are important. To bring a person within Section 114 of the Indian Penal Code, the abetment must be complete apart from the mere presence of the abettor. It is necessary first to make out the circumstances which constitute abetment, so that, "if absent", he would have been "liable to be punished as an abettor", and then to show that he was present when the offence was committed. The previous concert is an essential factor in the constitution of the offence of abetment under Section 114 of the Indian Penal Code.

The words "his presence when the act or offence..... is committed" are also important. The mere presence as an abettor of any person will not render him liable for the offence committed. He must be sufficiently near to give assistance, and there must be a participation in the act. If an abettor of an offence is on his account of his presence at its commission, to be charged under Section 114 as a principal, his abetment must continue down to the time of the commission of the offence.

The words "he shall be deemed to have committed such act or offence" are also significant. These words are very important. Their effect is that the person present is to be Page 12 of 16 HC-NIC Page 12 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT treated in the same way as if he had committed the offence. This is not the same thing as saying "he has committed the offence". The person present is deemed to have committed the offence, not that he has committed it. I may give one illustration.

'A', strucks a blow in the presence of, and by the order of 'B'. Both are principals in the transaction. If two persons join in beating a man, and he dies, it is not necessary to ascertain exactly what the effect of each blow was. If 'A' instigates 'B' to murder 'Z', he commits abetment and is punishable in any event; if absent, he is punishable as an abettor; if the offence is committed, then under Section 109; if present, he is by Section 114 deemed to have committed the offence and is punishable as a principal.

Thus, Section 114 will not apply unless the following facts are prima facie established from the record of the case :

(1) Abetment prior to commission of the offence; and (2) Abettor's presence at such commission - Jainul Haque v. State, AIR 1974 SC 45.

It would be too much for this Court to believe the case put up by the first informant and the other witnesses that since in the past they were being threatened of dire consequences, for which no complaint was lodged, that led them to believe, or rather, the same was the reason why the other seven persons came at the spot of the occurrence and created trouble and, therefore, the applicants could be said to be the abettors.

I am told that the applicant no.1 has recently undergone an open heart bypass surgery and is aged 73 years.

There is one more issue involved in this matter. The police has filed charge-sheet for the offence punishable under Section 188 of the Indian Penal Code as, according to the Page 13 of 16 HC-NIC Page 13 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT investigating agency, the accused persons who were armed committed breach of the notification issued by the Commissioner of Police, Surat, under the Bombay Police Act. Section 188 is to be found in Section 195 of the Code of Criminal Procedure. Section 195 of the Code reads as under :

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance-

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

Section 195 referred to above provides that no court shall take cognizance of the offence punishable under Section 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. The complaint referred to above in Section 195(1)(a) means complaint as defined under Section 2(b) of the Code. It means a complaint in writing before the Court of the learned Magistrate. In such circumstances referred to above, the Court could not have taken cognizance of the offence under Section 188 of the Indian Penal Code on a police report.

Mr.Prabhav Mehta made an attempt to argue that the Page 14 of 16 HC-NIC Page 14 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT trial Court not only could have taken cognizance of the offence under Section 188 of the Indian Penal Code on a police report but also of the other offences which are not included in Section 195 of the Code. He placed reliance on the decision of the Supreme Court in the case of State of U.P. v. Suresh Chandra Srivastava and others, reported in AIR 1984 SC 1108, wherein the Supreme Court held as under :

"It is well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect, only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 Cr. P. C."

He also placed reliance on the decision of the Supreme Court in the case of State of Karnataka v. Hemareddy and another, reported in AIR 1981 SC 1417, wherein the Supreme Court observed as under :

"We agree with the view expressed by the learned Judge and hold that In cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195 (1) (b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in S. 195 (1) (b) of the Code of Criminal Procedure should. be upheld."

I do not intend to dwelve into the issue of Section 195 of the Code of Criminal Procedure as I am of the view that although the charge-sheet has been filed against the two applicants herein alongwith the others, yet there is no legal Page 15 of 16 HC-NIC Page 15 of 16 Created On Thu Jan 07 00:18:30 IST 2016 R/SCR.A/5554/2015 JUDGMENT evidence as such to put the applicants herein to trial. If that be so, then I am of the view that the proceedings should be quashed so far as the two applicants herein are concerned. I may clarify that it is not the case of the prosecution that there was any criminal conspiracy or any meeting of minds prior to the alleged incident or any exhortation. This has been fairly conceded by the learned counsel appearing for the first informant as well as the learned APP appearing for the State.

As stated above, the only reason to arraign the applicants herein as accused is the threat alleged to have been administered some time in the past before the alleged incident is alleged to have occurred.

In the result, this application is allowed. The further proceedings of the Criminal Case No.62511 of 2014 pending in the Court of the learned 3rd Additional Civil Judge and JMFC, Surat, are hereby ordered to be quashed so far as the two applicants herein are concerned. The case shall proceed further expeditiously in accordance with law so far as the other co-accused are concerned.

Rule made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.) MOIN Page 16 of 16 HC-NIC Page 16 of 16 Created On Thu Jan 07 00:18:30 IST 2016

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