Criminal Revision No.1429 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: December 02, 2008 Jai Singh .....Petitioner VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Akshay Bhan,Advocate, for the petitioner. Mr.Yashwinder Singh, AAG, Haryana, for the State. Mr.S.S.Narula, Advocate, for the complainant. **** RANJIT SINGH, J. This revision petition is filed by Jai Singh, who along with other accused stands charged for different offences including an offence under Section 302 IPC. As per the allegations, a fight took place at Naveen Garden, Gohana Road, Sonepat on 24.11.2007 between the employees of a Banquet Hall and some members of the marriage party. Petitioner Jai Singh is the owner of the Banquet Hall. Criminal Revision No.1429 of 2008 : 2 : He was present in that capacity and alleges that he has been falsely implicated by the complainant. As per the allegations in the FIR recorded on the statement of Rajvir, the marriage of grand son of Tika Pehalwan was to be held on 24.11.2007 at Naveen Garden, Sonepat. The complainant along with his nephews Ramesh Kumar, Sanjay, Rajesh and Parveen Kumar had joined a marriage party. His nephews Sanjay and Ramesh were standing along the road outside the Banquet Hall with their friends Rajesh and Parveen. They asked petitioner Jai Singh to bring some water and fruit chat. Jai Singh allegedly responded by saying that they are not Chaudharies for whom he would bring the things outside. The nephew of the complainant in turn replied that there was nothing to say that they were Chaudharies merely because they had asked for food outside. Jai Singh petitioner is alleged to have raised lalkara for teaching them a lesson, whereupon Ravinder and Surender sons of the petitioner caught hold of Ramesh Kumar, Sanjay, Devender and Pardeep and caused injuries with stick and wood planks. Jai Singh is alleged to have caused injury on the head of nephew Sanjay with the wood plank. Sanjay fell down and raised cry “Marditta-Marditta”. The crowd gathered and Sanjay, Ramesh, Parveen and Rajesh were taken to civil hospital in a vehicle. It is alleged that Sanjay died because of the head injury. During the course of arguments, the counsel for the petitioner submits that even as per the complainant there were two separate occurrences, first at Naveen Garden, where the petitioner was shown present, but even as per the own showing of the Criminal Revision No.1429 of 2008 : 3 : complainant, the petitioner was not present during the second occurrence when allegedly gun shot was fired leading to death of the deceased. It is in this background, the counsel pleads that petitioner cannot be charged for an offence under Section 302 IPC. In support of his plea, he has placed reliance even on the remand application, Annexure P-1. Submission is that accused Devender, Ravinder, Surender and Pardeep including the petitioner, allegedly constituted an unlawful assembly and, thus, they have been rightly charge sheeted. On the other hand, the counsel for the petitioner would contend that Jai Singh has only inflicted simple injury to Sanjay at Naveen Garden, who died because of gun shot injury at civil hospital, where petitioner was not present. Thus, he cannot be charge sheeted for an offence under Section 302 read with Section 149 IPC. Plea is that the petitioner cannot be accused of having a common object to commit an offence of murder of Sanjay where he was not even present. Mr.Akshay Bhan, counsel for the petitioner would contend that separate charge is required to be framed for distinct offences. It is so ordained by Section 218 Cr.P.C. which says that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. He further contends that it is not a case where two distinct offences can be joined together for the purposes of being charged and it is also not a case where different accused having distinct responsibility can be charged jointly. Mr.S.S.Narula, on the other hand, would refer to the Criminal Revision No.1429 of 2008 : 4 : provisions of Section 142 IPC to say that though incident is in two separate parts, but still petitioner is to be taken as a member of unlawful assembly as he continued to be member of the said assembly to be responsible for the offence of murder, though committed in separate incident at the hospital. The counsel would further contend that both the offences committed are in the course of same transaction and accordingly the petitioner would be liable to be charged for an offence under Section 302 IPC as well. I have considered the rival submissions made before me. It is to be seen if the petitioner can be charged for an offence of murder, though he was not present at the time of the said incident. To attract vicarious liability on the part of the petitioner, the counsel for the complainant has heavily relied upon the provisions of Section 142 IPC. This section provides whoever, being aware of the facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. The wording of this section cannot be interpreted to mean that a person who is a part of unlawful assembly by intentionally joining it would continue to remain member of that unlawful assembly, even if he had dis-associated himself from the assembly when separate incident takes place. The words “or continues in it” are of significance. The petitioner may be a part of unlawful assembly having intentionally joined it at the Naveen Garden, but admittedly he was not present at the hospital where the fire-arm was used leading to the death of the deceased. Can he still be said to be continuing to be a member of that unlawful assembly to incur vicarious liability?. The answer apparently would be in the Criminal Revision No.1429 of 2008 : 5 : negative. If he had continued to be part of the assembly having initially joined it, only then he could be taken as a member of unlawful assembly. For whatever reason the petitioner has not been part of the assembly, when the fire arm was used and the offence under Section 302 IPC was committed. It would not be possible to hold that though not present, the petitioner continued to be part of unlawful assembly. He cannot, thus, be saddled with vicarious lability for what all happened in the subsequent part of the incident at the premises of the hospital. Let us now see in case the petitioner can be jointly charged for the offence with other accused. Section 218 Cr.P.C. makes a provision for separate charge for every distinct offence and a separate trial. Section 219 then makes a provision for charging and trying a person for number of offences not exceeding three committed within the space of twelve months from the first to the last of such offences together provided the offences are of the same kind. When are the offences considered to be of the same kind is also indicated in the Section itself. As can be seen from Section 219 (2) which provides “offences are of the same kind when they are punishable with the same amount of punishable under the same section of Indian Penal Code or of any special or local laws”. Section 220 regulates the trial for more than one offence by providing that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. The significant words in the section are “same person”. Thus, a person who commits series of acts which are so connected Criminal Revision No.1429 of 2008 : 6 : with each other to form the same transaction, then he may be charged with and tried for one trial for every such offence. This would be an exception to the general rule as laid down in Section 218 Cr.P.C. as is Section 219. Section 223 of the Cr.P.C. then makes a provision for what all persons may be charged jointly. The persons may be charged and tried together if they are accused of the same offence committed in the course of same transaction, if they are accused of offence and abetment or attempt etc, a person accused of diffident offences committed in the course of same transaction etc. The analysis of the provisions would show that it is not a case where petitioner is accused of more than one offence which is of the same kind for which the offences can be joined and charged and tried together. It can also not be said that these two separate incidents are one series of acts so connected together as to form a same transaction. Even if it be construed so, then it cannot be said that more offences than one are committed by the same person, i.e., the petitioner, to enable the prosecution to plead for he being charged with and tried at one trial for every such offence. Petitioner cannot be said to be a person accused of the same offence committed in the course of the same transaction to direct his joint trial with the other accused persons. The offence alleged against the petitioner is under different sections and is distinct one. The incident concededly had taken place in two parts. One part had taken place at Naveen Garden, whereas the second part of the incident took place in the hospital. They are two separate and distinct incidents revealing separate and distinct offences. The whole acts cannot be said to be in the course of same transaction. Accordingly, the provisions of Criminal Revision No.1429 of 2008 : 7 : Section 223 Cr.P.C. would also not come in support of the plea made by respondent to charge the petitioner for an offence under Section 302 IPC. In criminal trial, the first and primary object is requirement of a fair trial. The various provisions of the Code seeks to secure this object by laying down various provisions. For every offences, there should be a separate charge as required under Section 218 Cr.P.C. except in certain specified cases. This is sought to be achieved, so that the object of fair trial is not nullified by joinder of numerous and unconnected charges. The exception, carved out to this in the form of Section 219 Cr.P.C., which again is based on some rational principle and this is to avoid multiplicity of proceedings. The principle as laid down in Section 219 Cr.P.C is that if a criminal act has several aspects, all of them should be adjudged together. In fact, the law in regard to joinder of charges and joint trial is contained in Sections 218 to 223 Cr.P.C. All these Sections are, as such, to be read together and not in isolation inasmuch as they deal with the same subject matter and set out different aspect of it. (See Willie (William) Slaney Vs. State of Madhya Pradesh, AIR 1956 Supreme Court 116). Section 218 Cr.P.C. provides a general rule that for every distinct offence, there shall be a separate charge. In view of the detailed discussion as noticed above, the charge framed against the petitioner under Section 302 IPC and his trial along with the remaining accused for the said offence cannot be sustained. However, the petitioner would be responsible for the incident that took place at Naveen Garden, Sonepat for which he can be charged along with the remaining persons for being part of an Criminal Revision No.1429 of 2008 : 8 : unlawful assembly and for commission of those offences as are made out from the said part of the incident. The order framing the charge against the petitioner under Section 302 IPC, as such, cannot be sustained and the same is set aside. The case will go back to the trial court for framing a charge against the petitioner under the appropriate sections in view of the observations made above. It would be open for the court to see if the second part of the episode was on account of any abetment on the part of the petitioner and if it is possible to frame a charge against him jointly with others. As per Section 227 Cr.P.C., persons may be joined together when one is accused of offence and another with abetment thereof. The revision petition is accordingly disposed of in the above terms. December 02, 2008 ( RANJIT SINGH ) ramesh JUDGE