Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case relating to a complaint for offences under Sections 143, 147, 149 and 283 of the Penal Code, 1860 and Sections 38 r/w section 52 of the Kerala Police Act, 1960, for formation of Statewide human chain by the Communist Party of India to compel the Union Government to withdraw from the Association of Southeast Asian Nations (ASEAN) free trade agreement, Bechu Kurian Thomas, J has observed that the continuance of proceedings against the petitioners is an abuse of the process of court as the conduct alleged against the petitioners do not satisfy the ingredients of Section 141 of IPC, and when the allegations do not satisfy the ingredients of unlawful assembly, the offences under Sections 143, 147 and 149 of IPC cannot be attracted. Further in the absence of any allegation against petitioners, proceeding in a criminal action for the offence under Section 283 IPC is an abuse of the process of law.

The Court referred to Section 141 of IPC and observed that it indicates that every assembly of five or more persons by itself will not become an unlawful assembly, as an assembly of five or more people will become unlawful only when they have a common object, and the said object falls within the categories mentioned under Section 141 of IPC. When the common object of the assembly does not fall within any of the five categories specified in Section 141 even if the number of the assembly is more than five, the act alleged will not attract the offence of unlawful assembly. Thus, the essence of the offence of unlawful assembly lies in the consensus of purpose of more than five persons to commit an act specified in 141 of IPC.

The Court referred to the decision in Aravindan v. State of Kerala, 1983 SCC OnLine Ker 26, wherein it was observed that “the mere fact that an assembly consists of five or more persons is likely to disturb the public peace does not prove that the common object of the assembly is one of those enumerated in the Section, but Section 151 of Penal Code may come in and that the common object must be an immediate one and not to be carried out at some future time”.

The Court, after examining the complaint, observed that it is seen that though the complainant alleges that more than five persons had assembled, there is no mention of any of the ingredients that can attract any one of the five facets described as ‘first to fifth’ of Section 141 of IPC. The respondent has no case that the petitioner had a common object to commit any of the offences specified in Section 141 of IPC, and the assembly was formed only to express their protest against the Government signing an agreement with the ASEAN countries. Further, no criminal force or show of criminal force is alleged to have been committed by any member of the assembly, and as Section 141 of IPC significantly uses the words ‘criminal force’ in most of the provision, thus, a protest or an assembly of persons without any criminal force or show of criminal force would not make the assembly unlawful.

It was also observed that an assembly of more than five persons gathered for a peaceful protest cannot fall within the term unlawful assembly, as the right to protest peaceably is an essential ingredient of the fundamental right under Article 19(1)(a) and 19(1)(b) of the Constitution of India. Thus, an assembly of persons without arms or without criminal force or without any intent to commit an offence can only be a lawful assembly, which is not prohibited. Further, if every assembly is regarded as offensive conduct, then the right to freedom of speech and expression and the right to form an assembly guaranteed under the Constitution will be a dead letter.

The Court also observed that the right to dissent is the core of every democratic establishment, and the constitutional scheme of our country embodies the salutary principle of the right to dissent. Further, merely because the dissent is not acceptable to the majority, is not a reason to initiate criminal action unless the dissent was coupled with violent, disorderly or damaging conduct by any member of the assembly.

The Court viewed that there is no allegation of any criminal force used or presence of any common object for committing an offence or that the human chain lasted indefinitely. There is also no case where there was any inconvenience or obstruction to the public for an extended period. Thus, the conduct alleged against the petitioners does not satisfy the ingredients of Section 141 of IPC, and when the allegations do not satisfy the ingredients of unlawful assembly, the offences under Sections 143, 147 and 149 IPC cannot be attracted. Therefore, petitioners cannot be prosecuted for the aforesaid offences.

Moreover, the Court applied the principle in Section 95 IPC that embodies the principle of ‘deminimis non curat lex’ meaning that “law does not consider trifles and viewed even if it is assumed that any slight obstruction was caused to the public, the same was only a trifle, as this is evident from the fact that no one other than the complainant had any grievance. Thus, the continuance of proceedings against the petitioners is an abuse of the process of court. Therefore, petitioners cannot be prosecuted for the aforesaid offences.

[Prakash Karat v. State of Kerala, 2022 SCC OnLine Ker 5243, decided on 13.10.2022]


Advocates who appeared in this case :

For Petitioners: Advocate Alan Papali

Senior Advocate M.K. Damodaran

Advocate Gilbert George Correya

Advocate Sojan Micheal

Advocate. P.K. Vijayamohanan

For Respondents

Senior Director General of Prosecution T.A Shaji

Senior Government Pleader P.Narayanan

Senior Government Pleader Sajju.S.

Case BriefsDistrict Court

Karkardooma Court, Delhi: In a case filed by the State against the two accused Yogender Singh and Suraj under Section 147/148/149/427/436 Penal Code, 1860 (‘IPC’) based on deposition made by eye witnesses Shamshad (‘complainant’) (‘PW2’) and Pramod (‘PW3’), Amitabh Rawat, J. acquitted both the accused of all the offences punishable under Section 147/427/436 IPC read with Section 149 IPC, as the prosecution failed to prove its case against both the accused persons beyond reasonable doubt, which is the touchstone of criminal law on account of questionable veracity of the statements made by the witnesses. The acquittal is based on firstly, the presence of the accused persons was not established and secondly no charges were framed and even the testimony did not come from the concerned authority.

The present case of prosecution pertains to an unlawful assembly in Ashok Nagar, Delhi which used criminal force and violence and committed rioting in prosecution of their common object at the said place. The said unlawful assembly/rioters caused damage to the property of the complainant and set it on fire.

The Court noted that the testimony of PW2 & PW3, therefore, has to be scrutinized in detail for prosecution to establish its case. It was noted that the arrest memos of both the accused persons do not show either PW2 or PW3 as witness based upon whose identification they were arrested. PW2 Shamshad has not identified the accused persons in the court and in fact, has not even deposed about any identification by him of the accused persons on 09-03-2020 at Police Station Jyoti Nagar.

Also, PW3 deposed that on 09-03-2020 when he was in Police Station Jyoti Nagar, he saw two persons with ASI Vijay in the Police Station and identified them as involved in the present case. Yet PW3 is not a witness in the arrest memo.

The Court found it interesting that the deposition of PW5/ASI Deshpal who stated that on 09-03-2020, ASI Vijay Kumar handed over to him a disclosure statement of accused in FIR at P.S. Jyoti Nagar. He started an investigation and PW3- Pramod came to the Police Station, saw the accused and identified them as participants of riots. Moreover, complainant Shamshad (PW2) also visited the Police Station by chance, and he also identified the accused (this version of PW5 is completely absent in the deposition of PW2).

Thus, after identification by PW3-Pramod and complainant PW2-Shamshad, he wrote the statements of accused persons and arrested them. If the testimony of PW5 is correct and accused persons were arrested after identification by PW2 & PW3, then presence of PW2 & PW3 as witnesses in the arrest memos should have been there and the absence in the light of the testimony of PW2 & PW3, raises doubts over the prosecution case.

The Court opined that the testimony of the natural eye-witness/PW2 Shamshad and the testimony of PW3-Pramod does not inspire the Court to conclude the case against accused persons namely Yogender Singh and Suraj beyond reasonable doubt.

The Court, thus, acquitted both the accused persons, observing that on the cumulative reading of the entire testimonies of all the witnesses, the presence of accused persons in the unlawful assembly on the time and place of incident and their participation in the act of rioting, mischief and burning of house of complainant Shamshad is not established at all.

[State v. Yogender Singh, 2022 SCC OnLine Dis Crt (Del) 37, decided on 14-09-2022]


Advocates who appeared in this case :

Rajeev Krishan Sharma, Special Public Prosecutor, for the State;

Nishant Kumar Tyagi and Deepak Mohan, Advocates, for the accused.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsSupreme Court

   

Supreme Court: In an appeal against the Karnataka High Court's reversal of acquittal of 2 out of the 22 accused acquitted by the Sessions Court in a murder case, the bench of V. Ramasubramanian*and Indira Banerjee, JJ has reversed the High Court's verdict observing that there were glaring contradictions between the testimony of the witnesses.

In this case all the 22 accused armed with deadly weapons formed themselves into an unlawful assembly and committed trespass by entering into the house of the deceased and committed his murder, in furtherance of a common object. The Sessions Court acquitted all 22 accused including the appellants, however, the High Court convicted the appellants, by observing that there was consistency in the evidence of eyewitnesses with regard to their participation in the commission of the offence and the Trial Court erroneously acquitted them, when there was sufficient material on record to hold them guilty.

The Court observed that the above findings of the High Court appear to be illogical as the primary charge of the prosecution was that all the 22 accused, formed themselves into an unlawful assembly with the common object of committing the murder of the deceased and that all of them being members of the unlawful assembly were armed with deadly weapons and that they committed the offence of rioting, trespass and murder.

The Court observed that:

“We do not know how, in the facts and circumstances of the case, the conviction of only 2 out of the 22 accused can be sustained and that too only for the offence under Section 302 when the allegation of unlawful assembly, common object, trespass, rioting etc. are held not proved against all of them”.

Moreover, the State has not come up with any appeal against the acquittal of all the other accused nor was there any explanation as to why there were two First Information Reports.

The Court took note of the ruling in Arvind Kumar v. State of Rajasthan, 2021 SCC Online SC 1099 wherein the court held that “the principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country”, and thus viewed that the High Court was right that the evidence of eyewitnesses cannot be rejected by invoking the theory of ‘falsus in uno falsus in omnibus', as this principle may not have unadulterated application to criminal jurisprudence. However, when there are glaring contradictions between the testimony of these two witnesses on the type of material object used and even on the role of one accused, the very foundation of the case of the prosecution stood shaken.

The Court observed that the High Court should have come up with stronger and cogent reasons than what has been recorded as the law on the scope of Section 378 of the Code of Criminal Procedure (CrPC), is too well settled.

Placing reliance on Ravi Sharma v. Government of NCT of Delhi, 2022 SCC Online SC 859 the Court viewed that the impugned judgment of the High Court is not in accordance with the law traced in this decision, hence, the conviction of the appellants cannot be sustained.

[Ramabora v. State of Karnataka, 2022 SCC OnLine SC 996 , decided on 10.08.2022]

*Judgment by: Justice V. Ramasubramanian

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Calling it to be ‘moral policing’ K. Haripal, J., addressed a matter wherein a man had taken a lady from another community in his car due to which a mob attacked him with deadly weapons.

The offences under Sections 143, 147, 148, 341, 323, 324, 506(ii), 308 read with Section 149 of Penal Code, 1860 were alleged against the petitioners.

It was alleged that the accused persons along with some identifiable persons formed an unlawful assembly and in prosecution of their common object, owing to the reason that CW1 Sanal had taken a lady of a different community in a car, the 1st accused wrongfully restrained and intimidated that he would be killed; 2nd accused beat him with a wooden reaper, a dangerous weapon and caused him injuries; accused’s 3 and 4 assaulted him with iron rods.

Petitioners approached this Court for quashing the proceedings on the ground of settlement as the trial had already commenced.

High Court’s reasoning


Why the proceedings cannot be quashed?

High Court expressed that,

  • Firstly, the trial of the case was in progress, the memorandum of evidence indicated that at least seven witnesses have already been examined on the side of the prosecution.
  • Secondly, present case was the one in which a violent mob was attacking respondent 2 ostensibly for no reason. The reason was that he had removed a lady from another community in the car.

The Bench agreed with the submission of the Senior public Prosecutor that, is such a case would be quashed on the ground of settlement, it would send a wrong message to the public.

“…they were doing moral policing.”

In the present case, the brutal attack was unleashed against an unarmed single person and caused serious injuries.

Court also noted that a few of the petitioners were fugitive criminals having very grave criminal antecedents, hence the alleged settlement with respondent 2 cannot be reckoned for quashing the proceedings under Section 482 of the CrPC.

The above case was dismissed. [Muhammed Nazar v. State of Kerala, Crl MC No. 239 of 2022, decided on 8-3-2022]


Advocates before the Court:

For the petitioners: S. Jiji, Advocate

For the Respondents:

M.M. Baby, Advocate

Others: Sr. PP – Hrithwik C.S.

Case BriefsSupreme Court

Supreme Court: In a case where an accused merely pointed to the house where the victim was hiding, thereby helping a fully armed “murderous mob” locate the victim, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the mere fact that the accused was not brave enough to conceal where the victim was hiding did not make him a part of the unlawful assembly under Section 149 of the IPC.

A house was being constructed on land stated to be of the victim named Abdul Wahab and others when the accused persons came in a mob towards the house of the victim armed with lathis, spears, daggers, etc. The victim tried to escape by taking shelter in the house of one Shorab Ali but did not succeed as the house was surrounded, walls of the house were broken and a mounted assault made on the victim. Different accused were assigned different roles to the extent of the weapon they wielded. The body of the victim was then carried and disposed of by throwing in the river Brahmaputra.

Charges were framed against the accused under Sections 147/148/324/302/201 read with Section 149 of the IPC and the Sessions Judge convicted all the 32 accused and sentenced them to life imprisonment vide judgment dated 8.5.2015.

The Supreme Court, in the case at hand, was only concerned with the appeal filed by Taijuddin, one of the accused, claiming that his role was only of having pointed out the house where the victim was hiding.

The Court considered the following key factors while deciding the case:

  • The victim’s son, in his testimony, stated “Taijuddin showed that my father Abdul Wahab was inside the house of Sorab.”
  • There were inconsistency in the testimonies of the witnesses – inasmuch as the family members of the deceased never even pointed a finger at the appellant as also some of the other witnesses, while the witnesses who did point a finger only assigned the role of pointing out the place where the victim was hiding.
  • The appellant was present at the place of the incident at the early hours in the morning (around 6:30 AM) because of his house being almost adjacent to where the deceased was hiding.
  • He did not come along with the mob, was not carrying any weapon and did not assault anybody.

The Court noticed that the only evidence of his involvement is that he pointed to the house where the victim was hiding.

“Given that a murderous mob fully armed was hunting for him, the appellant at best can be said not to be brave enough to conceal the deceased or even to have not pointed out where he was, but that by itself cannot rope in the appellant under Section 149 of the IPC.”

In Subal Ghorai v. State of West Bengal, (2013) 4 SCC 607, the Supreme Court had held that constructive liability cannot be stretched to lead to the false implication of innocent bystanders. The Court considered the possibility of often people gathering at the scene of offence out of curiosity but that did not make them share the common object of the assembly. The Court held that,

“The Court must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. There must be reasonable direct or indirect circumstances which lend assurance to the prosecution case that they shared common object of the unlawful assembly. Not only should the members be part of the unlawful assembly but should share the common object at all stages. This has to be based on the conduct of the members and the behaviour at or near the scene of the offence, the motive for the crime, the arms carried by them and such other relevant considerations.”

Considering the aforementioned law laid down by the Supreme Court and the facts and material before the Court, it was held that the case against the appellant was not proved beyond reasonable doubt. In fact, no case seemed to have been proved against the appellant given the role assigned to him in the testimony of the witnesses. The accused was, hence, entitled to a clean acquittal in the given facts.

[Taijuddin v. State of Assam, 2021 SCC OnLine SC 1154, decided on 01.12.2021]


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., while addressing the present petition expressed that:

“This is the third occasion, in the last one month, where the notice of this Court has been drawn to the advocates indulging themselves in criminal activities by forming part of an unlawful assembly.”

Bench after taking into consideration the fraud committed by the 5th respondent initiated the proceedings for perjury and directed the Registrar General to file a complaint under Section 340 CrPC.

5th respondent was detained and it was seen that he was able to instigate others to act on his behalf and on his investigation, 6th and 7th respondents herein along with certain persons calling themselves as Advocates, seemed to have made an attempt to break open the lock in the property and take forcible possession of the same.

Petitioner immediately gave a complaint in the above regard and since no FIR was registered, he approached the XVI Metropolitan Magistrate’s Court, by filing an application under Section 156(3) of CrPC and an order came to be passed on 14-12-2020 directing the police to register an FIR and conduct investigation.

The threat exerted by the respondents 5 to 7 continued and it was informed that everyday, a group of persons come to the subject property and create law and order problem. It was also reported that some of the advocates also formed part of this unlawful assembly. Due to the presence of the advocates, respondent police hesitated to give police protection to the property.

Decision

Bench in view of the facts and circumstances of the case stated that the lockdown period has again revived the despicable practice wherein the advocates indulge in illegal activities of grabbing properties.

Hence, it is high time that the Court comes down heavily and stop such activities before it goes out of control.

Therefore, Court directed the 4th respondent to provide necessary police protection to the property of the petitioner and the names of the advocates involved in the said incident to be gathered.

This report will form the basis for this Court to give a complaint before the Bar Council of Tamil Nadu and Pondicherry against the concerned advocates.

Matter to be posted on 02-03-2021. [P.S. Kirubakaran v. Commr. of Police, Vepery; 2021 SCC OnLine Mad 508; decided on 08-02-2021]

Case BriefsDistrict Court

Karkardooma Court: Naveen Gupta, Additional Session Judge, while addressing a bail application filed, denied the same and held that,

A peaceful protest is the essential right in a vibrant democracy as of ours, but this right is subject to certain exceptions provided under the Constitution of India.

In the present case, allegations in view of protests against the Citizenship Amendment Act (CAA) Section 144 CrPC had been imposed. During a flag march with large police on 26-02-2020, a noise of firing was heard. Pursuant to the firing, public persons were asked to disperse, but they refused to do so.

Further, SHO announced the crowd as unlawful assembly and again asked the people to disperse but the persons named in FIR including the applicant did not allow the crowd to remove themselves. Applicant instigated the crowd saying that they would not remove themselves even if, they die or whatever police officials do, they want freedom. In fact, the crowd was even asked to pelt stones.

In view of the above, Police used the force to control the situation, but the crowd remained there and thereafter, police used tear gas shells and fired in the air. Persons from the crowd started manhandling with police staff. Thus FIR was registered.

Applicants counsel submitted that there was a peaceful protest against CAA for las 49 days and no complaint of criminal activity had been moved against the protesters. It is one of the fundamental rights of citizens to protest and register their dissent.

Further, they contended that those police officials who were a part of the flag march did not record the entire alleged incident by videography. Moreover, the applicant was not present at the spot, rather she was picked up from her house.

Additional Public Prosecutor for the State submitted that, the said actions of persons named in FIR, as well as other persons of the crowd, clearly lead to infer that the assembly had turned into an unlawful assembly with a common object to overawe by criminal force the police officials in the exercise of the lawful power as well as to commit an offence.

Adding to the above contentions, APP submitted that, considering the background of applicant, there is a high chance of tampering with the evidence and threatening of witnesses by her, in case she is admitted to bail at the preliminary stage of the investigation.

Court’s Decision

Bench stated that,

Under Section 141 of Penal Code, 1860, ‘an assembly which not unlawful when it assembled, may subsequently become an unlawful assembly’. Referring to the Supreme Court decision in Ramachandran v. State of Kerala, (2011) 9 SCC 257“Common Object” may also be developed at the time of the incident.

Court stated that in view of the facts and circumstances along with the contents of the FIR, it shows that members of the assembly had been armed with a pistol. They had pelted stones. Instigation was also caused by the persons named in the FIR.

Applicant and members of assembly targeted the police officials with gunshot and pelting of stones etc.

Bench adding to the above also stated that it is guided with the principles laid down in the Supreme Court’s decision in Prashant Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, wherein it was held that,

“…factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.”

Hence, while concluding its decision, the Court held that the charges in the present case are of serious nature.

When protectors of law are targeted in the manner as reflected in presnet FIR and that too, in the gaze of general public, such actions lower public confidence in the ability of police officers to do their duty.

Thus, Court view of above is not inclined to grant bail to the applicant. [State v. Ishrat Jahan, Bail Application No. 370, decided on 28-02-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V., J. allowed this bail application registered under Section 439 of the Code of Criminal Procedure, 1973. 

The applicant of this application is the accused 7 of the Crime No. 445 of 2019 of the Shornur Police Station registered under Sections 143, 144, 147, 148, 324, 326, 307 and 447 read with Section 149 of the Penal Code. 

The facts of the case are that on 22-11-2019, all the 7 accused’s who were named in the First Information Report along with 3 others, attacked the complainant and his friend Abdul Rahman with swords and weapons, causing him serious injuries. 

The counsel for the applicant/accused, Nireesh Mathew, contended that the accused 7 did not hurt the complainant. The counsel contended that the injuries were made by the rest of the accused. He contended that the accused is only liable for being a member of unlawful assembly and as such guilty under Section 149 of the Penal Code.

Section 149 of the IPC states that if an offence is committed by any member of an unlawful assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. in. The counsel would contend that the injuries were inflicted by the rest of the accused and the applicant herein was roped in with the aid of Section 149 IPC.

The counsel for the complainant/respondent, Remesh Chand, Public Prosecutor, contended that the wound certificate shows serious injuries of the informant and his friend. 

The Court, after listening to the counsels of both the parties, held that the first informant has no case and that the applicant was not armed with a weapon or anything. Neither did the applicant induced any serious injury to the complainant. On this basis, the Court allowed this application of bail on executing a personal bond of Rs 1,00,000 with two other solvent sureties each for the sum as per the satisfaction of the Court having jurisdiction. Some other conditions were also imposed-

  1. the applicant has to appear before the Investigating Officer on all the Mondays between 10 a.m. and 1 p.m. for a period of three months or till the final report is laid; whichever was earlier.
  2. the accused should not intimidate or attempt to influence the witnesses, nor should he tamper with the evidences
  3. while the accused is on bail, he should not commit any offence.

In case of violation, the jurisdictional Court shall be empowered to consider the application for cancellation.[Vishnu Prasad v. State of Kerala,  2019 SCC OnLine Ker 5349, decided on 12-12-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. allowed a petition seeking to quash an order of the Sessions court on the ground that the petitioner was juvenile and protected by the Juvenile Justice (Care and Protection of Children) Act, 2015.

The petitioner along with other persons was accused of forming an unlawful assembly and damaging the informant’s property. A case was instituted under Sections 147,148,149,341,323,324 and 307 of the Penal Code, 1860 (‘IPC’) and Section 27 of the Arms Act. 1959. Petitioner’s case was considered by the Juvenile Justice Board, West Champaran Bettiah. The Board ordered the petitioner to go home in the care of his father. The petitioner, being aggrieved by the order appealed before the Sessions Judge. The Sessions Judge by an order dated 11-02-2016 convicted him under Sections 149 and 307, 149 of the IPC.

Sanjay Kumar, counsel representing the petitioner submitted that on the date of occurrence of an event, the petitioner was 15 years old, the Board had to conclude enquiry without holding anything against the petitioner. He was a member of an unlawful assembly but had no role in any overt act. There was no delinquency record against the petitioner and no complainants were lodged regarding his behaviour. The petitioner was required to be released and the appellate court had gone beyond its jurisdiction in convicting him. The conviction was totally uncalled for as the informant or the State had not filed any appeal.

Bhanu Pratap Singh for the State contended that the order of the board was sufficient and the order passed by Sessions judge regarding petitioner’s guilt is unsustainable as no appeal was preferred by the prosecution.

The Court upon perusal of the facts and circumstances held that the Sessions Judge by ordering conviction has misdirected himself as it was not an appeal by State or the informant and juvenility of the petitioner should have been considered by the court. The court quashed the order and allowed the appeal on two grounds, recording of guilt was found to be unjustified upon appraisal of evidence, and secondly, the petitioner is protected by virtue of Section 24 of the Juvenile Justice (Care and Protection of Children) Act, 2015. [Md. Isteyak v. State of Bihar, 2019 SCC OnLine Pat 1926, decided on 08-11-2019]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench comprising of Harsha Devani and A.S. Supehia, JJ. pronounced the order on quantum of sentence in the ‘Naroda Patiya Riot case’. The respondents who were earlier convicted for various offences of IPC were awarded 10 years imprisonment.

On a fateful day, as many as 93 persons were done to death by the unlawful assembly of which the respondents were a part. The High Court had already convicted the respondents in the case. The respondent-accused 24 moved an application seeking the benefit of the provisions of Probation of Offenders Act. On this point, the High Court noted that the respondents were convicted inter alia under Sections 326 and 436. Since the sections prescribe a punishment of life imprisonment, the Court relying on Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633, held that the benefit of Section 4 of Probation of Offenders Act was not available to the respondents.

Coming to the question of quantum of sentence to be awarded to the respondents, the Court referred to State of H.P. v. Nirmala Devi, (2017) 7 SCC 262, and observed that the punishment should be proportionate to the offence committed. While sentencing a person for a heinous crime, deterrence theory as a rationale for punishing the offender becomes more relevant. The Court considered the magnitude of destruction caused by the unlawful assembly; entire incident had serious communal overtones; properties of innocent victims were reduced to ashes. The offences committed were not against any individual but against the society at large. The Court was of the view that imposing too lenient a sentence would be a travesty of justice. Considering gravity of offence and agony of the victims, the Court awarded 10 years of rigorous imprisonment for the offence under Section 436 IPC along with various sentences for other offences; sentences were directed to run concurrently. [Farzanabanu Ayubkhan Pathan v. Umeshbhai Surabhai Bharwad, 2018 SCC OnLine Guj 1194, decided on 25-06-2018]

Case BriefsSupreme Court

Supreme Court: In the case where the culpability of an accused participating in an unlawful assembly was in question, the bench of S.A. Bobde and L. Nageswara Rao, JJ said that the presence of an accused as part of an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly but it could well be that an accused had no intention to participate in the object of the assembly.

Explaining with the help of an example, the Court said that if the object of the assembly is to murder someone, it is possible that the accused as a particular member of the assembly had no knowledge of the intention of the other members whose object was to murder, unless of course the evidence to the contrary shows such knowledge. But having participated and gone along with the others, an inference whether inculpatory or exculpatory can be drawn from the conduct of such an accused.

According to the Court, the point of time at which the accused discovered that the assembly intended to kill the victim, the attempt, if any, made by him/her to stop the assembly from pursuing the object and if he/she dissociate from the assembly by getting away upon failing to stop the assembly, are the issues that will determine whether an accused shared the common object in the assembly. Without evidence that the accused had no knowledge of the unlawful object of the assembly or without evidence that after having gained knowledge, he attempted to prevent the assembly from accomplishing the unlawful object, and without evidence that after having failed to do so, the accused disassociated himself from the assembly, the mere participation of an accused in such an assembly would be inculpatory. [Kattukulangara Madhavan v. Majeed, 2017 SCC OnLine SC 299, decided on 30.03.2017]