Santosh Kumari . State
of J & K & Others
J U D G M E N T
J.M. PANCHAL, J.
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
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 Application No.26 of 2010 by which the respondent Nos. 3 to 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.
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 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 under Sections 302, 109, 147, 148, 149 of Ranbir Penal Code.
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 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 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.
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 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
Court has heard the learned counsel for the parties and have considered the documents
forming part of the appeals.
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 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 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'.
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 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.
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 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.
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 :-
"IN THE COURT OF
ADDL. SESSIONS JUDGE KATHUAI, Vinod Chatterji Koul hereby charge you,Rajesh
Singh S/o Jagdish Singh R/o Sanoora, tehsil Hiranagar as under :
a. 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
b. And I hereby direct you
be tried by this Court on the said charge.
accused dated 24th March 2008
Rajesh Singh S/o
Jagdish Singh R/o Sanoora, tehsil Hiranagar Caste rajput, employee by profession
Question: Whether you
have understood the contents of the charge which has been read over and
explained to you?
Question: Whether you
have committed the offence?
Question: Whether you
want to say anything more?
Answer: I am innocent
and want trial of the case.
It may be mentioned
that similar charge has been framed against each accused by order dated March
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
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.
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 :-
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 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
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....."
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 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.
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 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 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."
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
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.
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 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 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.
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 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.