Santosh Kumari vs State Of J & K & Ors

Santosh Kumari ... Appellant

Versus

State of J & K & Others ... Respondents

J U D G M E N T

J.M. PANCHAL, J.

1. The appellant is the widow of late Mr. Surinder Singh,

who was murdered at about 9:00PM on June 28, 2007.

Criminal Appeal No. 1660/2011 is directed against judgment

dated October 20, 2010 rendered by the learned Single Judge

of High Court of Jammu and Kashmir at Jammu in Criminal

Revision No.29 of 2008 by which the order dated March 24,

2008 passed by the learned Additional Sessions Judge,

Kathua framing charges under Sections 302, 109, 147, 148

read with Section 149 of Ranbir Penal Code against

respondent Nos. 3 to 7 is set aside and the matter is

remanded to the learned Judge, Samba to consider the case in

terms of Sections 267, 268 and 269 of the Code of Criminal

Procedure, 1989 (1933 A.D.) (as applicable in the State of

Jammu and Kashmir). Criminal Appeal No. 1661 of 2011 is

directed against order dated October 20, 2010 passed by the

learned Single Judge of High Court of Jammu and Kashmir at

Jammu in 561-A Cr.P.C. No.54 of 2009 by which prayer made

by the respondent of the present appeal to quash order dated

March 24, 2008 passed by the learned Additional Sessions

Judge, Kathua in a Criminal Challan being File No. 33 of 2007

titled as State Vs. Subhash Singh and Others framing charge

against him for commission of offences under Sections 302,

109, 147, 148 read with 149 of Ranbir Penal Code, is allowed.

Criminal Appeal No. 1662 of 2011 is directed against

judgment dated October 20, 2010 passed by the learned Single

Judge of High Court of Jammu and Kashmir at Jammu in Bail

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Application No.26 of 2010 by which the respondent Nos. 3 to 7

have been released on interim bail pending trial against the

respondents for above mentioned offences. As the three

appeals arise out of common judgment and order dated

October 20, 2010 rendered by the learned Single Judge of

High Court of Jammu and Kashmir in Criminal Revision No.29

of 2008, petition filed under Section 561-A Cr.P.C. No.54 of

2009 and Bail Application No.26 of 2010, this Court proposes

to dispose of them by this common judgment.

2. The case of the prosecution is that respondent Nos. 3 to

8 in criminal appeal No. 1660 of 2011 formed an lawful

assembly on 29-06-2007, common object of which was to

murder Surinder Singh and in prosecution of the common

object of the said assembly, respondents Nos. 3 to 8 mounted

a murderous assault on Surinder Singh, husband of the

appellant, at village Sanoora, District Samba (J & K). The

injured was immediately shifted to hospital for treatment. On

the basis of the information given by the appellant, FIR

No.113/2007 under Section 307 read with 109 of Ranbir Penal

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Code was registered at police station Hiranagar, in connection

with the aforesaid incident on June 29, 2007. On July 2,

2007 injured Surinder Singh succumbed to his injuries in

Military Hospital, Satwari, Jammu and, therefore, offence

punishable under Section 302 of Ranbir Penal Code was

added. On the basis of FIR lodged by the appellant,

investigation was undertaken. During the course of

investigation statement of the appellant and other witnesses

were recorded under Section 164 of the Code of Criminal

Procedure 1989. The dead body of the deceased was sent for

postmortem examination. After completion of the

investigation, the investigating agency had filed charge sheet

in the Court of learned Magistrate for offences punishable

under Sections 302, 109, 147, 148, 149 of the Ranbir Penal

Code. As the offence punishable under Section 302 is triable

exclusively by a Court of Sessions, the case was committed to

Sessions Court for trial. The learned Additional Sessions

Judge, after hearing the prosecution and the accused on the

question of framing charge, framed necessary charge on March

24, 2008 against each accused for the offences punishable

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under Sections 302, 109, 147, 148, 149 of Ranbir Penal Code.

3. Feeling aggrieved by the framing of above mentioned

charges by the trial court on March 24, 2008, the respondent

Nos. 3 to 7 in Criminal Appeal No.1660 of 2011 preferred

Criminal Revision No. 29 of 2008 before the High Court. The

High Court by order dated June 6, 2008 issued notice and

summoned the record of the case from the trial court. On

March 20, 2009, the respondent No. 8, who is original accused

No.6, preferred a petition No. 54 of 2009 under Section 561-A

of the Code of Criminal Procedure to quash order dated March

24, 2008 passed by the trial court framing charges against

him for commission of offences punishable under Sections

302, 109, 147, 148 read with 149 of the Ranbir Penal Code.

During the pendency of above numbered petitions, the High

Court by order dated August 13, 2009 sent back the record to

the trial court and granted liberty to the respondent Nos. 3 to

8 to seek bail from the trial court. When the above numbered

Revision and the petition filed under Section 561-A were

pending disposal before the High Court, the prosecution

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examined three eye witnesses to the occurrence viz. (1)

Santosh Kumari, i.e., the appellant herein, (2) Surishta Devi

and (3) Shakti Devi. It may be stated that the appellant and

the Shakti Devi have fully supported the case of the

prosecution.

Pursuant to the liberty granted by the High Court vide

order dated August 13, 2009, the respondent Nos. 3 to 8

applied for bail before the trial court. The trial court rejected

Bail Application filed by the accused vide order dated February

19, 2010. The record of the case indicates that except accused

Iqram, who is respondent No.8 in Criminal Appeal No. 1660 of

2011, all the other accused filed Bail Application No. 26 of

2010 before the High Court claiming bail. The High Court by

order dated August 10, 2010 directed the learned counsel for

the accused to place on record the deposition of the witnesses

recorded by the trial court. On August 13, 2010, Raman

Singh, brother of accused Subash Singh, who is respondent

no.3 in the main appeal, physically assaulted and threatened

the son of the appellant as well as one Kuljit Singh who is one

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of the witnesses in the case, allegedly in the court premises

itself, to refrain them from deposing against the accused in

the case. They were also warned that if they gave depositions

against the accused they would be killed. Because of the

assault mounted by brother of the accused, son of the

appellant has lodged FIR No.183/2010 under Sections 341,

195-A, 504, 506 of Ranbir Penal Code at Police Station Samba.

With reference to above mentioned FIR statement of the son of

the appellant was recorded under Section 164 Cr.P.C. on

August 20, 2010.

On September 8, 2010 and October 7, 2010 the

prosecution examined two more eye witnesses, i.e., (1) Raksha

Devi and (2) Kamlesh Devi who had supported the prosecution

case.

4. The High Court by order dated October 20, 2010 has set

aside the order dated March 24, 2008 passed by the trial court

framing charge against the respondent Nos. 3 to 8 and has

remanded the case to the trial court to consider it in terms of

Sections 267, 268 and 269 of the Code of Criminal Procedure

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1989. By the said order the High Court has directed release of

all the accused persons except accused Subhash, who is

respondent No.3 in the main appeal, pending consideration of

the prosecution case for framing charge by the trial court. The

above mentioned order dated October 20, 2010 of the High

Court has given rise to the three instant appeals.

5. This Court has heard the learned counsel for the parties

and have considered the documents forming part of the

appeals.

6. The provisions relating to framing of charge against the

accused before the trial commences, are contained in the Code

of Criminal Procedure 1989 (1933 A.D.) which is applicable to

the State of Jammu and Kashmir. The statute requires that

every charge framed under the said code should state the

offence with which the accused is charged and if the law which

creates the offence gives it any specific name, the offence

should also be described in the charge by that name only. The

statute further requires that the law and section of the law

against which the offence is said to have been committed has

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to be mentioned in the charge. It is a fundamental principle of

criminal law that the accused should be informed with

certainty and accuracy the exact nature of the charge brought

against him. The object of the statement of particulars to be

mentioned in the charge is to enable the accused person to

know the substantive charge, he will have to meet and to be

ready for it before the evidence is given. The extent of the

particulars necessary to be given in the charge depends upon

the facts and the circumstances of each case. It is well settled

law that in drawing up a charge, all verbiage should be

avoided. However, a charge should be precise in its scope and

particular in its details. The charge has to contain such

particulars as to the time and place of the alleged offence and

the person against whom it was committed as are reasonably

sufficient to give the accused notice of the matter with which

he is charged. One of the requirements of law is that when the

nature of the case is such that the particulars mentioned in

the charge do not give the accused sufficient notice of the

matter with which he is charged, the charge should contain

such particulars of the manner in which alleged offence was

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committed as would be sufficient for that purpose. If `A' is

accused of the murder of `B' at a given time and place, the

charge need not state the manner in which `A' murdered `B'.

7. Like all procedural laws, the Code of Criminal Procedure

is devised to subserve the ends of justice and not to frustrate

them by mere technicalities. It regards some of its provisions

as vital but others not, and a breach of the latter is a curable

irregularity unless the accused is prejudiced thereby. It places

errors in the charge, or even a total absence of a charge in the

curable class. That is why we have provisions like Sections

215 and 464 in the Code of Criminal Procedure, 1973.

The object of the charge is to give the accused notice of

the matter he is charged with and does not touch jurisdiction.

If, therefore, the necessary information is conveyed to him in

other ways and there is no prejudice, the framing of the charge

is not invalidated. The essential part of this part of law is not

any technical formula of words but the reality, whether the

matter was explained to the accused and whether he

understood what he was being tried for. Sections 34, 114 and

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149 of the IPC provide for criminal liability viewed from

different angles as regards actual participants, accessories and

men actuated by a common object or a common intention; and

as explained by five Judge Constitution Bench of this Court in

Willie Slavey Vs. The State of M.P. 1955 (2) SCR 1140 at p.

1189, the charge is a rolled-up one involving the direct

liability and the constructive liability without specifying who

are directly liable and who are sought to be made

constructively liable.

In the light of above principles, the question whether

proper charge was framed against the respondent Nos. 3 to 8,

will have to be viewed.

8. In the present case, what was argued on behalf of the

respondent Nos. 3 to 8 before the High Court was that the

charge was invalid because there was no mention in the order

of the trial court indicating the specific offence found to have

been prima facie committed by one or the other accused

individually or jointly nor there was any indication regarding

the specific names of the offences sufficient for description in

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the order of framing charge, but only sections of the law

against which the offences were found to have been committed

were mentioned.

The High Court has held that mere mention of the

sections of the law in the order framing the charge would not,

serve the purpose of law, as it was likely to prejudice the

accused in his trial, and that, the accused would be disabled

to know the exact Charge he had to face. In view of the above

mentioned conclusion, the High Court has set aside the order

dated March 24, 2008 framing charge against the accused and

has remanded the matter to the trial court to consider the case

in terms of Sections 267, 268 and 269 of the Code of Criminal

Procedure 1989 which are pari materia to Sections 226, 227

and 228 of the Code of Criminal Procedure 1973.

9. In order to ascertain whether the Charge framed against

respondent was proper or not, this Court proposes to

reproduce order dated March 24, 2008 framing charge against

Rajesh Singh son of Jagdish Singh, resident of Sanoora, tehsil

Hiranagar, which reads as under :-

12 "IN THE COURT OF ADDL. SESSIONS JUDGE

KATHUA

I, Vinod Chatterji Koul hereby charge you,

Rajesh Singh S/o Jagdish Singh R/o Sanoora,

tehsil Hiranagar as under :

1. That on 28.6.07 at Sanoora at about 9.30

pm with criminal intention along with

other accused persons, having common

criminal object armed with lathies (sticks)

committed rioting and in that attacked

deceased Surinder Singh with an

intention to murder him attacked and

injured him seriously, who thereafter on

2nd July 2007 during treatment

succumbed to his injuries at Medical

College Jammu, and you thereby

committed offence punishable u/s

302/109/147/148/149 of the Ranbir

Penal Code and within the cognizance of

this Court.

2. And I hereby direct you be tried by this

Court on the said charge.

Dated 24.3.08 Sd."

"Statement of accused dated 24th March 2008

Rajesh Singh S/o Jagdish Singh R/o Sanoora,

tehsil Hiranagar Caste rajput, employee by

profession aged...

Question: Whether you have understood the

contents of the charge which has been read

over and explained to you?

Answer: Yes

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Question: Whether you have committed the

offence?

Answer: No.

Question: Whether you want to say anything

more?

Answer: I am innocent and want trial of the

case.

Sd."

It may be mentioned that similar charge has been framed

against each accused by order dated March 24, 2008.

A fair and reasonable reading of the above quoted order

dated March 24, 2008 makes it abundantly clear that accused

Rajesh Singh on June 28, 2007 at Sanoora about about 9.30

pm with criminal intention along with other accused, having

common object armed with lathies (sticks) committed rioting.

Thus, the charge contains particulars as to the time, place and

date of the offence of rioting. The law which creates the

offence gives it specific name, i.e., "rioting" and, therefore, the

offence is described in the charge by that name, namely,

"rioting". The charge further proceeds to state that while

committing rioting accused Rajesh Singh and other assaulted

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deceased Surinder Singh with an intention to murder him and

injured him seriously. Thus the name of person with reference

to whom common criminal object was formed by the members

of the unlawful assembly was stated. It was also stated in the

Charge that during the treatment injured Surinder Singh had

succumbed to his injuries on July 2, 2007 at Medical College,

Jammu. Thus the date on which the deceased succumbed to

this injuries and the place where the deceased succumbed to

his injuries were mentioned with precision. Finally in the

Charge, it was mentioned that accused Rajesh Singh had

committed offences punishable under Sections 302, 109, 147,

148, 149 of the Ranbir Penal code. After framing Charge

immediately the plea of accused Rajesh was recorded. The

first question which asked to him was whether he had

understood the contents of the Charge which was read and

explained to him. In answer to the said question accused

Rajesh Singh had answered in affirmative. The record shows

that thereafter two questions were put to accused Rajesh

Singh in answer to which he had claimed that he was innocent

and had wished to be tried.

15 10. This is not a case of mere mention of the sections of the

law in the charge or the order of framing charge. Therefore,

the High Court was not justified in observing that mere

mention of the sections of the law in the charge was likely to

prejudice the accused in his trial and that he would be

disabled to know the exact charge he had to face, nor the High

court was justified in observing that the trial court was not

alive to the provisions of Chapter XIX of the Code of Criminal

Procedure. It is necessary to reproduce part of the order

passed by the trial court which is relied upon by the High

Court for the purpose of coming to the conclusion that mere

mention of the sections of the law in the charge or the order

framing charge, would not serve the purpose of the law. The

said order reads as under :-

"Upon consideration of the arguments of

the learned Public Prosecutor, the

learned counsel for the accused and the

written arguments besides the judgments

cited and also the statements of the

witnesses recorded by the police and

other connected documents on the file, I

am of the considered opinion that there

are reasonable grounds to presume that

accused Subash Singh S/o Krishen

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Singh, Rajesh Singh S/o Jagdish Singh,

Vijay Singh S/o Krishen Singh, Ranjit

Singh S/o Baldev Singh, Rakesh Singh

S/o Jagdish Singh and Ikram Singh S/o

Neter Singh caste Rajput residents of

Sonoora Tehsil Hiranagar have prima

facie committed offences punishable

under Sections 302/109/147/148 and

149 RPC. Offence punishable under

Section 302 RPC is exclusively triable by

the court of sessions.

Charges under Sections

302/109/147/148 and 149 RPC is

framed against accused Subash Singh,

Rajesh Singh, Vijay Singh, Ranjit Singh,

Rakesh Singh and Ikram Singh. The

contents of the charges framed have been

read over and explained to the accused

persons who have pleaded not guilty to

the said chages and have claimed to be

tried....."

11.A glance at the order quoted above would reveal that at

the stage of framing charge the learned counsel for the

accused had pleaded for discharge of the accused under

the relevant provisions of the Code of Criminal Procedure

1989. Not only the learned counsel for the accused had

advanced oral arguments, but he had also submitted

written arguments and cited judgments as well as

statements of the witnesses recorded by the police and

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relied upon other connected documents on the file to

emphasize that the accused should be discharged. The

order of the trial court which is quoted by the High

Court in the impugned judgment is not the order

framing charge at all. It is a short order indicating that

no case was made out by the learned counsel for the

accused for discharging the accused at the stage of

framing charge and that the accused should be tried for

the offences which were mentioned in the order of

framing charge separately against each accused.

12.On the facts and in the circumstances of the case, this

Court is of the opinion that a patent error of law

apparent on the fact of the record was committed by the

High Court in coming to the conclusion that in the order

of framing charge there was mere mention of the

sections of the law which was likely to prejudice the

accused in his trial, as the accused would be disabled to

know the exact charge he had to face. Having noticed

the charge which was separately framed against each

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accused, the inevitable conclusion to be reached by this

Court is that the High Court erred in law in holding that

it was obligatory for the trial court to have indicated in

its order and the charge sheet the description of the

offences for which one or the other accused had to be

tried because all necessary particulars which should be

stated as required by law were already stated by the

learned Judge of trial court while framing charge.

Further the fact that trial against the accused has / had

made considerable progress in as much as material evidence

of the eye witnesses to the occurrences was recorded by the

trial court could not have been ignored while deciding the

question whether proper charge against each accused was

framed or not. The nature of charge to be faced was clearly

understood by each accused which is evident from the plea

recorded by the trial court after framing necessary charge that

the nature of charge was very well understood by each

accused. The fact is also evident from the averments made in

the Revision Petition which was filed by the accused

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challenging order framing charge. The fact that charge was

clearly understood by each accused is also evident from the

nature of cross-examination of the eye witnesses made on

their behalf by their learned counsel. In view of the fact that

all the eye witnesses have been examined and cross-examined

on behalf of the accused, the High Court should have resorted

to the provisions of Section 225 of the Code of Criminal

Procedure, 1989 as applicable to the State of Jammu and

Kashmir which reads as under :-

"225. Effect of errors :- No error in stating

either the offence or the particulars required to

be stated in the charge, and no omission to

state the offence or those particulars, shall be

regarded at any stage of the case as material,

unless the accused was in fact misled by such

error or omission, and it has occasioned failure

of justice."

The cross-examination of the eye witnesses on behalf of

the accused would indicate that none of the accused was in

fact misled by so-called error pointed out by the High Court

nor it could be successfully pointed out by any of them that

so-called error has occasioned failure of justice to him. The

remand of the case to trial court for considering the case

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afresh on the point of charge was not warranted at all, as

there is nothing to suggest or indicate even remotely that the

accused had or would have been misled by any error or

omission in the Charge. Therefore, the order dated October

20, 2010 rendered in Criminal Revision No.29 of 2008

deserves to be set aside. For the similar reasons the order

dated October 20, 2010 passed by the High Court in petition

filed under Section 561-A Cr.P.C. No.54 of 2009 allowing the

prayer made by the respondent No. 8 to quash the order dated

March 24, 2008 will have to be set aside.

13. It may be mentioned that the order admitting the

accused except accused Subhash Singh to interim bail of

Rs.25,000/- each to the satisfaction of the trial court pending

consideration of the prosecution case afresh on question of

charge, was not warranted nor justified at all. Before granting

interim bail to the accused the High Court could not have

afforded to ignore the testimony of eye witnesses including

that of the appellant who is wife of the deceased, merely

because deceased had received only one injury nor the

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accused could have been accorded the benefit of temporary

bail on the spacious plea that they were facing trial over a

period of three years. The record of the case nowhere shows

that the prosecution was responsible in any manner at all for

so called delay in holding trial against the accused. The fact

that accused are involved in commission of a heinous crime

like murder which entails death or life imprisonment as

punishment should have been taken into consideration before

releasing the accused on interim bail. The trial court after

having considered the gravity of the offence and the

apprehension on the part of the prosecution that the accused

would tamper with the evidence in the event of their release on

bail had rightly refused to enlarge the accused on bail. The

High Court while granting the relief of bail to the accused has

completely ignored and over looked the aforementioned

relevant factors which weigh heavily against the accused.

Moreover, the complaint filed by Vijinder Singh that he and

Kuljit singh, who is one of the witnesses in the present case,

were physically assaulted and threatened in the Court

premises will have to be given its due weight. The FIR

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registered on August 13, 2010 is pending necessary

investigation wherein the statement of Vijinder Singh who is

son of the appellant was recorded on August 20, 2010 under

Section 164 Criminal Procedure Code. The contents of the FIR

would indicate that the accused either themselves or through

their relatives would try to tamper the evidence which is going

to be led by the prosecution in the case.

14. Under the Circumstances, this Court is of the opinion

that release of the accused except accused Subhash Singh on

interim bail deserves to be set aside. The net result of the

above discussion is that all the three appeals will have to be

allowed.

For the foregoing reasons the three appeals succeed.

Order dated October 20, 2010 rendered by the High Court of

Jammu and Kashmir at Jammu in Criminal Revision No.29 of

2008 is hereby set aside. Similarly the order dated October

20, 2010 passed by the High Court in petition filed under

Section 561-A Cr.P.C. No.54 of 2009 is also set aside. The

order dated October 20, 2010 passed in Bail Application No.26

23

of 2010 by which the accused except accused Subhash Singh

are enlarged on interim bail is also set aside. Accused

Subhash Singh is already in custody. Therefore, it is directed

that the other accused shall be taken in custody immediately.

Having regard to the facts of the case and more

particularly the fact that the trial has already commenced, the

trial court is directed to complete the trial as early as possible

and preferably within 9 months from the date of receipt of writ

from this Court. Subject to above mentioned directions, all

the three appeals stand disposed of.

...........................J.

(J.M. PANCHAL)

...........................J.

(H.L. GOKHALE)

NEW DELHI

SEPTEMBER 13, 2011.

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