Criminal Appeals Nos
284 285 of 1988
From the Judgment and Order dated 14886 of the Calcutta High Court in Criminal Appeal No 118 and 130 of 1985
Amal Datta DK Sinha JR Das and NA Choudhary for the Appellants
Gobind Mukhoty UR Lalit AK Cianguli RP Gupta
Shakeel Ahmed Syed and A Mariarputhanl for the ResPondents
The Judgment of the Court was delivered by SEN J
The State Government of West Bengal and the complainant Mohd Abu Bakkar Siddique Molla have come up in appeal by way of special leave from the judgment and order of a Division Bench Sukumar Chakravarty  Gobinda Chandra Chatterjee JJ of the High Court of Calcutta dated August 14 1986 setting aside the finding and sentences recorded by Shri SK Mitra Additional Sessions Judge 24 Paraganas 14th Court
Alipore dated April 4 1985 in Sessions Trial No 38 of 1983 directing retrial of the respondents before us 16 in number on the ground of material defect in the framing of the charges which according to the learned Judges had occasioned in failure of justice
The High Court held that 1 it appears from the heads of the charges framed by the learned Additional Sessions Judge that the principal accused Laisal Haque was charged along with other accused persons under section 302 read with section 149 of the Indian Penal Code 1860 alleging that in furtherance of the common obJect of killing the deceased Gulam Rabbani and injure others all the rioters committed the murder of Gulam PG NO 873 Rabbani
If such a charge was framed against all the accused persons including Laisal Haque there was no warrant of framing a charge against the accused Laisal Haque under section 302 simpliciter without making that charge as an alternative charge 
2 The charge framed by the learned Additional Sessions Judge as against the accused persons was materially defective inasmuch as it was a rolled up charge the common object of the unlawful assembly being to murder Gulam Rabbani and injure others
The use of the words injure others without specifically mentioning the names of the persons who were injured made the charge vague and indefinite
lnstead the Iearned Additional Sessions Judge ought to have framed separate and distinct charges for the assault and causing of grievous hurt in respect of each of the persons assaulted
3 The judgment of the learned Additional Sessions Judge suffers from a serious infirmity in that he had in a slipshod manner not discussed at all the evidence separately under different heads of the charges framed against each of the accused persons
While convicting the accused persons under section 324 read with section 149 he had not discussed which of the accused persons caused hurt to whom
In the course of the judgment the learned Judges have quoted a portion of the judgment of the learned Sessions Judge recording a finding of guilt and observed It is therefore clear that while arriving at the aforesaid finding the learned trial Judge has not discussed about the common object although he convicted the aforesaid accused persons under Section 148 IPC and under section 147 IPC
It also appears that while convicting the accused persons under Section 324 IPC the learned trial Judge has not discussed which of the accused persons caused hurt to whom
Another serious material irregularity in framing the charge under section 302 of the Indian Penal Code simpliciter against the accused Laisal Haque has been shown by Mr Roy
It appears from the heads of the charges that this Laisal Haque was charged along with other accused persons under section 302149 of the Indian Penal Code stating that in furtherance of the common object of killing Gulam Rabbani and injure others all the rioters committed the murder of Gulam Rabbani
If such a charge is framed against all the accused persons including Laisal Haque then it does not stand to PG NO 874 reason why again this Laisal Haque has been charged under section 302 simpliciter without making that charge as an alternative charge
Both Mr Roy and Mr Dutta learned counsel appearing for the respondents accused who preferred appeals in the High Court have submitted that because of the aforesaid irregular charges and rolled up charges the respective accused persons have been seriously prejudiced at the trial and the same has caused the failure of justice
The learned Advocate appearing for the State also shares the same view
The learned Judges then concluded On due consideration of the charges and the materials on record we also agree to the view as taken by the learned Advocates for the appellants and shared by the learned Advocate for the State
Further the conviction and sentence under section 324 or section 323 IPC simpliciter without framing the charges does not appear to be legal and have caused the failure of justice
The learned Judges accordingly held that the case required a retrial against the accused respondents alone as against 16 out of 42 persons arraigned by both the learned Additional Sessions Judge on reframing Of charges
This was done without disturbing the order of acquittal recorded by the learned Additional Sessions Judge and 26 other accused
The learned Judges were pleased to add that no observation made by them in the impugned order of retrial shall be treated as an expression of opinion on the merits of the case
It would be convenient at this stage to set out the charges framed by the learned Additional Sessions Judge which were in these terms First That you all on or about the 5th September 1980 at Najarnagar alias Sankarpore Ferryghat and PS Haroa were members of an unlawful assembly and did in prosecution of the common object of which assembly viz to murder Gulam Rabbani and injure others commit the offence of rioting and at that time were armed with deadly weapons such as bombs pipeguns iron rods brickbats etc
and thereby committed an offence punishable under section 148 of the Indian Penal Code and within the cognizance of the Court of Sessions
PG NO 875 Secondly That you all on the same date and place were members of an unlawful assembly and did in prosecution of the common object of such assembly viz to murder Gulam Rabbani and injure others some of you did commit murder by intentionally causing the death of the said Gulam Rabbani by gun shot injury which offence you know likely to be committed in prosecution of the common object and thereby committed an offence punishable under section 302 14 IPC and within the cognizance of the Court of Sessions
Thirdly That you all on the same date and place were members of an unlawful assembly and did in prosecution of the common object of such assembly viz to murder Gulam Rabbani and injure others some of you voluntarily caused hurt to Mokbul Molla Mr Akbar Ali Molla Abu Molla Yasin Molla Abdul Wahed Ahed Bux Molla Daulat Ali Molla Jaid Molla  Ors
by gun iron rod bombs lathi etc
which used as weapons of offence were likely to cause death which offence you knew likely to be committed in prosecution of the common object and thereby committed an offence punishable under section 324149 IPC and within the cognizance of the Court of Sessions
The learned Sessions Judge also framed a separate charge against the respondent Laisal Haque for the substantive offence of culpable homicide amounting to murder punishable under section 302 of the Indian Penal Code which is in the following terms That you on or about the 5th September 1980 at Najarnagar alias Sankarpore Ferryghat under Police Station Haroa did commit murder by intentionally causing the death of Gulam Rabbani and thereby committed an offence punishable under section 302 of the Indian Penal Code and with him the cognizance of the Court of Sessions
And I hereby direct that you be tried by the said Court on the said charges
We are unable to subscribe to the view of the High Court that there was a fundamental defect in the framing of the charges
This was clearly a case to which section 221 of the Code of Criminal Procedure 1973 which is an exception to section 218 of the Code viz that for every distinct offence there should be a separate charge and every charge should be tried separately applies Sec
218 embodies the general rule as to the trial of accused persons which provides for separate PG NO 876 trial of each accused person for every distinct offence and is based on the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet
221 applies to a case only when from the evidence led by the prosecution it is doubtful which of several offences has been committed by the accused person
There must not be any doubt as to a single act or series of acts which constitutes the transaction that is to say there must not be any doubt as to the facts
The doubt must be as to the inference to be deduced from these facts thus making it doubtful which of several offences the facts which can be proved will constitute
In the present case there is no doubt as to the facts
It is uncontroverted from the facts found by the learned Additional Sessions Judge that the sylvan surroundings of Shankarpore Ferryghat at Najarnagar on the banks of the river Bidyadhari which otherwise are peaceful and calm witnessed a tumultuous occurrence on the morning of September 5 1980 resulting in a grisly tragedy
The facts are that PW 1 Mohd Abu Bakkar Siddique Molla is a man of easy circumstances owning an oil mill a saw mill and a flour mill besides cultivation of his own
All of a sudden the atmosphere of Shankarpore was surcharged with turmoil and violence when a marauding crowd of 4050 miscreants including the respondents armed with deadly weapons such as pipeguns bombs spears tangis iron rods lathis etc
let loose their fury on the oil mill of the complainant
The armed mob caused considerable damage to the complainant s car WBE 1227 parked in front of the oil mill
Seeing the riotous mob the deceased Gulam Rabbani an employee of the complainant who was inside the oil mill along with other employees and the customers pulled down the shutters of the mill but could not escape the wrath of the armed mob
They effected a forcible entry into the mill by lifting the shutters
The respondent Laisal Haque the principal accused who was armed with a pipegun fired a shot at the deceased Gulam Rabbani who fell down on the spot and later succumbed to his injuries at the hospital
His associates then assaulted some of the customers inside the mill who were awaiting their turn as well as some of the employees with their weapons
After the deceased Gulam Rabbani was gunned down and several others received multiple bleeding injuries the armed mob retreated to the direction from which it came
Forty two persons were arraigned to stand their trial before the learned Additional Sessions Judge for the aforesaid offences with which they were charged namely under section 148 and sections 302 and 324 both read with section 149
As already stated the learned Additional Sessions Judge also PG NO 877 framed a separate charge against the respondent Laisal Haque under section 302 simplicter for having committed the murder of the deceased Gulam Rabbani
On a careful consideration of the evidence adduced by the prosecution and the circumstances attendant the learned Additional Sessions Judge came to the definitive finding that the respondents who are 16 in number were members of a riotous mob comprising 4050 persons armed with deadly weapons that they along with others went inside the mill and then respondent No 1 Laisal Haque opened fire with his pipegun at Gulam Rabbani which ultimately resulted in his death and further that they were the persons who assaulted the persons inside the oil mill and caused injuries to the servants of the complainant and others namely PW 7 Ahed Bux Molla PW 8 Sanai Molla PW 9 Fakir Ali Sardar PW 10 Rambilas Thakur PW 15 After Molla PW 16 Gulam Molla PW l9 Debiruddin Molla PW 20 Md Yasin Molla PW 21 Motiar Rahman and PW 22 Afsar Ali Molla
He accordingly convicted respondent No 1 under section 148 as well as under section 302 of the Indian Penal Code and sentenced him to rigorous imprisonment for a terms of three years and imprisonment for life respectively
He convicted some of the respondents who were armed with deadly weapons under section l43 and section 324 read with section 149 and sentenced them to undergo rigorous imprisonment for a period of three years on both counts
Some other respondents were however convicted under section 147 and sentenced to suffer rigorous imprisonment for two years
Presumably the learned Additional Sessions Judge proceeded upon the basis that the act of respondent No 1 Laisal Haque in opening fire with his pipegun at the deceased Gulam Rabbani was covered by clause thirdly of section 300 and therefore he was guilty of culpable homicide amounting to murder punishable under section 302
But as regards others he was of the view that the common object of the unlawful assembly was not to commit the murder of the deceased Gulam Rabbani but to voluntarily cause the servants of the complainant and others hurt by dangerous weapons and thus convicted them of the offence under section 148 and section 234 read with section 149
We refrain from expressing any opinion on the merits as to the legality and propriety of the conviction recorded as against these respondents
That is a matter for the High Court and it must come to the conclusion as to their guilt or otherwise on a proper appreciation of the evidence
We regret to find that there is complete non application of mind on the part of the High Court and instead of considering the appeals preferred by the respondents it has passed an order for retrial which is totally unwarrnated
It was nobody s case that were in fact misled by any error or defect in the charges framed PG NO 878 nor has the High Court explained as to how there has been a failure of justice
The High Court was clearly in error in directing a remand for retrial of the respondents
There are serious infirmities in the impugned order rendered by the High Court
2 15 of the Code provides that 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 a failure of justice
There is no material on record on which the High Court could have reached to such a conclusion
We may next refer to section 221 of the Code which provides by sub section
1 that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences
Sub section
2 thereof provides that if in such a case the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub section
1 he may be convicted of the offence which he is shown to have committed although he was not charged with it
Next Sec
464 of the Code provides that no finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error omission or irregularity in the charge including any misjoinder of charges unless in the opinion of the Court of appeal confirmation or revision a failure of justice has in fact been occasioned thereby
In the celebrated case of Willie William Slaney vs State of Madhya Pradesh   Vivian Bose J speaking for the Court after an elaborate discussion observed that in judging a question of prejudice as of guilt the Courts must act with a broad vision and look to the substance and not to the technicalities and their main concern should be to see whether the accused had a fair trial whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself
That test is clearly fulfilled in the facts and circumstances of the present case
The principles laid down by that very eminent Judge in Slaney s case have throughout been followed by this PG NO 879 Court
See KC Mathew  Ors
vs State of Travancore Cochin   Gurbachan Singh vs State of Punjab AIR 1957 SC 623 Eirichh Bhuian  Ors
vs State of Bihar 1963 Suppl
2 SCR 328 at pp
336 37 and State of Maharashtra vs Ramdas Shrinivas Nayak  Anr  Lastly we are constrained to observe that the High Court has not examined the merits of the case at all
If it had done so it could not have come to the conclusion that there was any material defect or omission in the framing of the charges or giving the particulars thereof or any failure of justice was occasioned thereby
It failed to appreciate that in an appeal by the respondents under section 3742 of the Code the order of acquittal passed by the learned Additional Sessions Judge as against the 26 other accused could not be interfered with
The High Court also failed to appreciate that there cannot be a piecemeal trial
The retrial directed by the High Court must necessarily revise the prosecution and must result in a trial de novo against the 42 accused
The 26 other accused acquitted by the learned Additional Sessions Judge were not impleaded as parties to the appeals before the High Court
In the absence of an appeal preferred by the State Government against thir acquittal The High Court could not under section 386b on an appeal by the respondents against their conviction alter the acquittal nor can there be a splitting up of the trial
See State of Karnataka vs Narsa Reddy   Accordingly the appeals must succeed and are allowed
The judgment and order passed by the High Court are set aside and the appeals are remitted to the High Court for a decision afresh on merits after notice to the parties
R S 
Appeals allowed 


Summary:
Some persons were plying their business by squatting on pavement in front of a hospital in Delhi and had put up stalls or kiosk allegedly on Tehbazari under a licence under section 321 of the Delhi Municipal Corporation Act 1957
The Delhi Municipal Corporation tried to remove them by demolishing their stalls etc
These persons filed suits in the Court of Subordinate Judge praying for perpetual injunction restraining the Corporation from interfering with their business andor removing or demolishing any temporary structures put up by them for plying their trade
The Subordinate Judge disallowed the plaintiffs  main claim seeking a declaration that the Municipal Corporation had no right or authority to remove the stalls built up by them
He however held that by virtue of the Tehbazari licence granted in their favour the plaintiffs had acquired the right to occupy and carry on business at the suit sites till their licence was not terminated by the Corporation according to the procedure laid down in proviso aii of Sub Section of Section 430 of the Act
Two of the squatters namely Jamuna Das and his brother filed writ petitions in this Court seeking a writ of mandamus ordaining the Municipal Corporation to allot each of them a suitable site on pavement in front of the main gate of the hospital
Jamna Das  Anr
vs PG NO 929 PG NO 930 Delhi Administration  Ors Writ Petition Nos
981 982 of 1984 This Court directed that the petitioners be rehabilitated by the Municipal Corporation by construction of stalls according to the sketch plan filed by the Corporation with a further direction that each of them would be put in possession of one of the stalls
The Court made it clear that this was a consent order and that the direction should not be treated as a precedent
The respondent who was one of the plaintiffs who had filed suits in the court of Subordinate Judge moved the High Court under Article 226 of the Constitution for a writ and direction restraining the Corporation from evicting her without the due process of law
The High Court partly allowed the writ petition holding that the judgment of the Learned Subordinate Judge which was a judgment inter partes had become final not having been appealed from and therefore the respondent could not be removed from pitching her stall on the pavement outside the hospital where she was squatting
Relying on the decision of this Court in Jamuna Das  case the High Court gave an option to the Corporation either to construct the stall similar to the one they have constructed in compliance with the direction made by this Court in Jamuna Das  case or in the alternative furnish to the respondent a plan of the stall with requisite permission so that she could build her own stall accordingly
Feeling aggrieved by this Judgment of the High Court the Municipal Corporation filed this appeal by special leave
Allowing the appeal this Court HELD The Learned Judges of the High Court failed to appreciate that this Court in Jamna Das  case made a direction with the consent of parties and with the reservation that it should not be treated as a precedent
It expressed no opinion on the question whether there was any statutory obligation cast on the Municipal Corporation to provide alternative site to a person making illegal encroachment on a public place like any public street etc
contrary to Section 320 of the Act as a condition precedent to the exercise of its powers under section 322 of the Act for the removal of such encroachment on any public street footpath or pavement
That apart the High Court could not have made the impugned direction contrary to the provisions contained in sections 320 and 322 of the Act
937A C It is axiomatic that when a direction or order is made by consent of the parties the Court does not adjudicate upon the rights of the parties nor lay down any principle
Quotability as law  applies to the principle of a case its ratio decidendi
The only thing in a Judge s decision PG NO 931 binding as an authority upon a subsequent Judge is the principle upon which the case was decided
Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative
The task of finding the principle is fraught with difficulty because without an investigation into the facts as in the present case it could not be assumed whether a similar direction must or ought to be made as a measure of social justice
That being so the direction made by this Court in Jamna Das  case could not be treated to be a precedent
The High Court failed to realise that the direction in Jamna Das  case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned
937F H 938A Pronouncements of law which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative
With all respect to the learned Judge who passed the order in Jamna Das  case and to the learned Judge who agreed with him we cannot concede that this Court is bound to follow it
It was delivered without argument without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets and without any citation of authority
Accordingly we do not propose to uphold the decision of the High Court because it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions
938F G  A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute
938G H Salmond on Jurisprudence by PJ Fitzgerald 12th Ed Gerard vs Worth of Paris Ltd K and Lancaster Motor Co London Ltd vs Bremith Ltd  referred to
Precedents sub silentio and without argument are of no moment
This rule has ever since been followed
One of the chief reasons for the doctrine of precedents is that a matter that has once been fully argued and decided should not be allowed to be reopened
The weight accorded to dicta varies with the type of dictum
Mere casual expressions carry no weight at all
Not every passing expression of a Judge however eminent can be treated as an ex cathedra statement
having the weight of authority
939G H PG NO 932 Olga Tellis  Ors
vs Bombay Municipal Corporation  Ors  and Bombay Hawkers  Union  Ors
vs Bombay Municipal Corporation  Ors   referred to