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STATE OF HARYANA versus BRAHAMJIT & ORS

High Court of Punjab and Haryana, Chandigarh

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STATE OF HARYANA v. BRAHAMJIT & Ors - MRC-5-2004 [2006] RD-P&H 111 (12 January 2006)

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1. Criminal Misc. No. 23058 of 2005 and Murder Reference No.5 of 2004

State of Haryana Vs. Brahamjit and others

2. Criminal Appeal No.736-DB of 2004 Vijay Pal @ Raju Vs. State of Haryana.

3. Criminal Appeal No.748-DB of 2004 Shiv Nath Vs. State of Haryana

4. Criminal Misc. Nos. 49969-71 of 2005 and Criminal Appeal No.749-DB of 2004

Brahamjit and others Vs. State of Haryana

5. Criminal Appeal No.804-DB of 2004 Parbhati and others Vs. State of Haryana

6. Criminal Appeal No.818-DB of 2004 Laxmi Narain Vs. State of Haryana

7. Criminal Appeal No.933-DB of 2004 Shyam Singh Vs.State of Haryana.

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Present: Mr.B.S.Rana, Senior Deputy Advocate General, Haryana.

Mr.Baldev Singh,Senior Advocate with

Mr.Harinder Singh, Advocate for the appellants in Criminal Appeal Nos.736-DB, 748-DB and 749-DB of 2004.

Mr.R.S.Cheema, Senior Advocate with

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Mr.Jagdev Singh, Advocate for the appellants in Criminal Appeal No.804-DB of 2004.

Mr.Pritam Saini, Advocate for the appellant in Criminal Appeal No.818-DB of 2004.

Mr.D.S.Bali, Senior Advocate with

Mr.Salil Bali, Advocate for the appellant in Criminal Appeal No.933-DB of 2004.

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Amar Dutt, J.

Brahamjit, Braham Pal, Braham Parkash, Satish, Dinesh, Jai Parkash, Parmod, Harinder, Vijay Pal alias Raju, Laxmi Narain alias Narain, Parbhati, Kanwar Singh, Kanwal Singh, Sanjay alias Teeta, Ishwar Singh, Shyam Singh, Mahabir, Devki Nandan and Shivnath were tried by the Additional Sessions Judge(I), Faridabad for the following charges:- "I, N.L.Pruthi, Additional Sessions Judge, Fast Track Court-II, FBD. do hereby charge you Kanwar Singh, Vijay Pal @ Raju, Laxmi Narain @ Narain, Parbhati, Kanwal Singh, Satish, Sanjay @ Teeta, Brahamjit, Ishwar Singh, Shyam Singh, Braham Pal, Brham Parkash, Dinesh, Harender, Mahabir, Devki Nandan, Shiv Nath, Jai Parkash and Parmod as follows:- Firstly that all of you on 20.12.99 at about 11.30 a.m.

in the area of Kothi No.720, Sector-16, FBD.P.S.Central Faridabad ****

were members of an unlawful assembly and did in prosecution of the common object of that assembly commit the offence of rioting and at that time you all were armed with deadly weapons; and thereby committed an offence punishable under section 148 IPC which is within my cognizance;

Secondly, that on the same date, time and place i.e. in the area of Kothi No.720, Sector-16, FBD., you Brahamjit, Satish, Sanjay, Braham Parkash, Brahampal, Dinesh, Harender and Bir Singh (since P.O.), Jai Parkash & Parmod conspired with Kanwar Singh, Ishwar Singh, Kamal Singh, Parbhati, Laxmi Narain, Vijay Pal @ Raju and wrongfully confined Harpal, Samay Pal, Ramu Dunni and thereby committed an offence punishable under Section 342 IPC read with Section 120-B which is within my congizance.

Thirdly, on the same date, time and place, all of you in prosecution of common object of the unlawful assembly formed by you voluntarily caused simple hurt to Pws. Harpal, Samay Pal, Ramu and Dunni and thereby committed an offence punishable U/s 323 IPC read with Section 149 which is within my congizance; Fourthly, that on the same date, time and place you Brahamjit, Satish, Sanjay, Braham Parkash, Brahampal, Dinesh, ****

Harender and Bir Singh (since P.O.), Jai Parkash & Parmod conspired with Kanwar Singh, Ishwar Singh, Kamal Singh, Parbhati, Laxmi Narain, Vijay Pal @ Raju and kidnapped Harpal, Samay Pal, Ramu and Dunni in order that these four persons might be murdered and thereby committed an offence punishable under Section 364 IPC read with Section 120-B which is within my cognizance.

Fifthly, on the same date, time and place, you Kanwar Singh, Ishwar Singh, Laxmi Narain pretended to hold the office of police as public servants and in such assumed character, brought the aforesaid four persons namely Harpal, Samay Pal, Ramu and Dunni from their houses in the area of Sector-15 and thereby committed an offence punishable under Section 170 IPC which is within my cognizance.

Sixthly, on the same date, time and place i.e. in Kothi No.720/16 Brahamjit, Satish, Sanjay, Braham Parkash, Brahampal, Dinesh, Harender and Bir Singh (since P.O.), Jai Parkash & Parmod conspired with Kanwar Singh, Ishwar Singh, Kamal Singh, Parbhati, Laxmi Narain, Vijay Pal @ Raju to commit the offence of murder of Harpal, Samay Pal, Ramu and Dunni punishable with life imprisonment or death; and thereby committed an offence ****

punishable under Section 120-B which is within my cognizance.

Seventhly, on the same date, time and place, you Brahamjit, Satish, Sanjay, Braham Parkash, Brahampal, Dinesh, Harender and Bir Singh (since P.O.), in furtherance of common object of the unlawful assembly formed by you, committed murders by causing the deaths of Harpal, Samay Pal, Ramu and Dunni and thereby committed an offence punisbable under Section 302 IPC read with Section 149 IPC which is within my cognizance.

Eighthly, that on the same date, time and place you Brahamjit, Satish, Sanjay, Braham Parkash, Brahampal, Dinesh, Harender and Bir Singh (since P.O.), Kanwar Singh, Ishwar Singh, Kamal Singh, Parbhati, Laxmi Narain, Vijay Pal @ Raju, Jai Parkash & Parmod knowing or having reason to believe that murders have been committed by you, destroyed the evidence by disposing the dead bodies of Harpal, Samay Pal, Ramu and Dunni with a view to screen yourselves from legal punishment and thereby committed an offence punishable under Section 201 IPC which is within my cognizance.

Ninthly, on 19.12.1999, in the area of P.S.Dadri, you Mahabir, Shiv Nath, Devki Nandan, Shyam and R.P.Singh (not ****

arrested so far) and Brahamjit conspired with Brahmjit to lock-up Brahamjit in a false case having FIR No.505 of 1999 under Sections 504/506 IPC P.S. Kotwali Dadri(UP) while Brahamjit was not in the custody of the police at that time but said Branhamjit was shown to be locked up in the police station to help him to commit murders of Harpal, Samay Pal, Ramu and Dunni and in pursuance of the agreement, Brahamjit committed the offence of murder punishable with life imprisonment or death; and thereby committed an offence punishable under Section 120-B IPC which is within my cognizance."

The trial ended in conviction of all the accused except Devki Nandan, Mahabir, Satish and Sanjay on various counts, which has led to the filing of Criminal Appeals No.736-DB,748-DB, 749-DB, 804-DB, 818-DB, 933-DB of 2004 and Murder Reference No.5 of 2004 in case of Brahamjit, Jai Parkash, Parmod, Shiv Nath and Vijay Pal alias Raju.

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In Criminal Appeal No.749-DB of 2004 appellants have moved Criminal Misc. No.49969-71 of 2005 under Section 367 Cr.P.C. for permission to lead additional evidence while in Murder Reference No.5 of 2004, Criminal Misc.

No.23058 of 2005 under Section 391 Cr.P.C. read with Section 482 Cr.P.C. has been moved for placing on record the order of learned Judicial Magistrate Ist Class, Faridabad dated 21.12.1999.

We have heard Sarvshri B.S.Rana, Senior Deputy Advocate General, Haryana appearing on behalf of the State and Baldev Singh, learned Senior counsel assisted by Harinder Singh, Advocate, R.S.Cheema, learned Senior Advocate assisted by Jagdev Singh, D.S.Bali, learned Senior Counsel assisted by Salil Bali, Advocate and Pritam Singh, learned counsel appearing on behalf of the appellants, who have unanimously pointed out a glaring defect, which if accepted, according to all the learned counsel, vitiates the trial and would necessitate the issuance of a direction to the trial Court to reframe the charges and proceed afresh with the case. The defect pointed out is evidently result of the failure of the trial Court to bear in mind the provisions of Section 218 of the Code of Criminal Procedure. The result of this non compliance was that even after amendment a single charge has been framed in relation to offences under Sections 323, 170 and 302 IPC, inasmuch as while framing these charges the trial Court has over looked the fact that though in pursuance of common object all the accused individually ****

had caused injuries to Harpal, Samay Pal, Ramu and Dunni, accused Kanwar Singh, Ishwar Singh and Laxmi Narain by impersonating themselves as police as well as public servants while taking Harpal, Samay Pal, Ramu and Dunni away from their houses in pursuance of common object for murdering them were responsible for committing the murders of each one of these deceased. Since all these transgressions would constitute distinct offences, the learned counsel submitted that separate charges have to be framed under Sections 323 IPC read with Section 149 IPC against all the appellants for injuries caused to Harpal, Samay Pal, Ramu and Dunni, under Section 302 IPC read with Section 149 IPC for the murders of Harpal, Samay Pal, Ramu and Dunni and under Section 170 IPC against Kanwar Singh, Ishwar Singh, Laxmi Narain, appellants for having impersonated as Government servants while picking up Harpal, Samay Pal, Ramu and Dunni. This submission has been made in the light of the decision of this Court in Murder Reference No.5 of 2005, State of Haryana Vs.Krishan and others decided on September 08, 2005 wherein after adverting to the facts of that case, where appellants were being tried for murder of three persons, this Court has observed as under:-

"One of the flaws in the proceedings conducted by the trial Court which has come to light during the course of arguments is the fact that though three persons had died in the incident yet a ****

composite charge for all the three murders had been framed.

According to Section 218 of the Code of Criminal Procedure, which reads as under:-

"218. Separate charges for distinct offences:-(1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately.

Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person.

(2)Nothing in sub-section(1) shall affect the operation of the provisions of sections 219,220,221 and 223.

a separate charge has to be framed for each of the offences, which have been committed in an incident. In the present case, persons, namely,Lakhan, Mohinder and Suresh are alleged to have been killed by the appellants Krishan, Ranjit and Balbir.

Viewed in the light of the provisions of Section 218 ****

Cr.P.C. referred to here-in-before, the trial Court was required to frame three separate charges against the persons arrayed as accused for the murders of Lakhan, Mohinder and Suresh. On the conclusion of the trial, the trial Court was required to examine the evidence in the light of three separate charges and pass three different orders in relation to charges so framed and thereafter, if so required, award sentences as per the provisions of Section 31 of the Code of Criminal Procedure. This is how the corresponding provisions in the Code of Criminal Procedure, 1898, namely, Sections 35 & 233 have been interpreted by the Privy Council in N.A.Subramania Iyer Vs. The King Emperor, The Calcutta Weekly Notes, Volume V (Privy Council), 866 where while dealing with the question whether the defect, which occurs on account of non compliance with the provisions of Section 233 of the Code of Criminal Procedure could be cured under Section 537 of the Code of Criminal Procedure, the Court observed:- "Their Lordships cannot regard this as cured by Sec.537.

Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity. Such a phrase as irregularity is not ****

appropriate to the illegality of trying an accused person for many different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one indictment. The illustration of the section itself sufficiently shows what was meant.

The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission, or irregularity.

Some pertinent observations are made upon the subject by Lord Herschell and Lord Russell of Killowen in Smurth-waite Vs. Hannay (1). Where in a civil case several causes of action were joined Lord Herschell says that "if unwarranted by any enactment or rule it is much more than an irregularity," and Lord Russell of Killowen in the same case says, "such a joinder of Plaintiffs is more than an irregularity; it is the constitution of a suit in a way not authorised by law ****

and the rules applicable to procedure.

With all respect to Sir Francis Maclean and the other Judges who agreed with him in the case of Abdul Rahman Vs.The Empress (2), he appears to have fallen into a very manifest logical error in arguing that because all irregularities are illegal as he says in a sense and this trial was illegal that therefore all things that may in his view be called illegal are therefore by that one adjective applied to them become equal in importance and are susceptible of being treated alike. But this trial was prohibited in the mode in which it was conducted, and their Lordships will humbly advise His Majesty that the conviction should be set aside.

Their Lordships will make no order as to costs." This view was followed by the Bombay High Court in Krishnaji Anant Dange and another Vs.Emperor, A.I.R. 1932 Bombay 277, by the Lahore High Court in Pahlad Vs. Emperor, A.I.R 1921 Lahore 381, by the Calcutta High Court in Kanai Lal Paladi Vs. Emperor, A.I.R. (35) 1948 Calcutta 274 and accepted by the Supreme Court in Aftab Ahmad Khan Vs.The State of Hyderabad, A.I.R. 1954 S.C.

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436, wherein it has been observed as under:- "Section 233 embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should be a separate charge and every such charge should be tried separately. There is no doubt that the object of Section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in Sections 234,235, 236 and 239.

Having regard to the facts and the circumstances of this case, we are of opinion that the present case falls under Section

235. It provides 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.

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No question of contravention of any express provision of the Code such as Section 233 arises and in the ****

circumstances it is not necessary for us to consider how far the violation of any express provisions of the Code relating to the mode of a trial or otherwise constitutes an illegality which vitiates the trial as distinguished from an irregularity which is curable under Section 537."

Looked at from another angle, if the provisions of Sections 218 and 31 Cr.P.C. had been complied with, the appellants would have been convicted under three separate heads for the murders of Lakhan, Mohinder and Suresh and three sentences of imprisonment would have been imposed on them, in addition whereto the trial Court would also have had to impose the sentences of fine on each count."

The situation in the present case is not different. As already conceded by the learned counsel for the parties, separate charges would have to be framed in relations to offences under Sections 323,170 and 302 IPC. In view of this, the conviction and sentences imposed upon the appellants are set aside and the case remanded to the Sessions Judge, Faridabad to be re-tried after proper charges have been framed as is required under Section 218 Cr.P.C. It is further directed that the Sessions Judge would deal with the trial as expeditiously as possible preferably within six months.

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Since the case is being remanded, Criminal Misc. Applications No.49969-71 of 2005 in Criminal Appeal No.749-DB of 2004 for permission to lead additional evidence as well as Criminal Misc.No.23058 of 2005 in Murder Reference No.5 of 2004 for placing on record the order of Judicial Magistrate Ist Class, Faridabad have been rendered infructuous and are dismissed accordingly.

(Amar Dutt)

Judge

September 26,2005 (Kiran Anand Lall)

Pa Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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