Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 767 (HP)

Amar Singh v. State of Himachal Pradesh

2015-06-25

TARLOK SINGH CHAUHAN

body2015
Judgment : Tarlok Singh Chauhan, J. By medium of this revision petition, the petitioner has sought quashing of charges framed against him under Sections 109, 147, 148, 149 and 323 of the Indian Penal Code (for short ‘IPC’). The essential facts may be noticed. 2. An FIR No.138/2008 was registered against the petitioner on 01.06.2008 under the aforesaid sections on the basis of the inquiry report submitted by the District Magistrate, Shimla with the SHO, Police Station, Boileauganj, Shimla. It is not in dispute that it is the petitioner alone, who has been arraigned as accused in the FIR and a number of other persons have been arraigned as suspects and kept in column No.12 in the Final Report submitted to the Court. 3. Learned counsel for the petitioner has made two-fold legal submissions:- i) that the offences under Sections 109, 147, 148 and 149 IPC can only be committed by two or more persons and, therefore, charges framed against him deserve to be quashed and; ii) that since the maximum punishment under Section 323 IPC is imprisonment for one year or fine of 1,000/- rupees or both, then the charge is not sustainable in view of the charge sheet having not been presented within one year of the date of commission of offence as prescribed under Section 468 of the Code of Criminal Procedure (for short ‘Code’). 4. Section 107 IPC provides for abetment of a thing and reads thus:- “107. Abetment of a thing.- A person abets the doing of a thing, who- First -Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 1.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.” 5. Section 108 IPC defines abettor to mean:- “108. Abettor.- A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.” Explanation 1.-The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. Explanation 2.-To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Explanation 3.-It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge. Explanation 4.-The abetment of an offence being an offence, the abetment of such an abetment is also an offence. Explanation 5.-It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.” 6. Section 109 IPC only provides for punishment of abetment. A combined reading of Sections 107, 108 would suggest that in order to constitute an offence of abetment, there must be a combining together two or more persons in an act or an illegal omission and, therefore, the abetment of an offence cannot be committed singly. 7. Sections 147, 148 and 149 IPC for which the petitioner has been charged reads thus:- “147. 7. Sections 147, 148 and 149 IPC for which the petitioner has been charged reads thus:- “147. Punishment for rioting.- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 148. Rioting, armed with deadly weapon.-Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that 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.” 8. Rioting as mentioned in Sections 147 and 148 IPC has been defined in Section 146 to mean:- “146. Rioting - Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” Whereas unlawful assembly as mentioned in Section 149 IPC has been defined in Section 141 IPC to mean:- “141. Rioting - Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” Whereas unlawful assembly as mentioned in Section 149 IPC has been defined in Section 141 IPC to mean:- “141. Unlawful assembly - An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is- First - To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant, or Second - To resist the execution of any law, or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” 9. A combined reading of Sections 141, 146, 147, 148 and 149 IPC would suggest that the offence of rioting can only be committed by an unlawful assembly for which there have to be an assembly of five or more persons. To constitute the offence of an unlawful assembly, there must be five or more persons and less than five is not an unlawful assembly within the meaning of Section 141 IPC and, therefore, cannot form the basis of an offence with the aid of Section 149 IPC. 10. In Subran alias Subramanian and others versus State of Kerala (1993) 3 SCC 32 , the Hon’ble Supreme Court held as under:- “10. 10. In Subran alias Subramanian and others versus State of Kerala (1993) 3 SCC 32 , the Hon’ble Supreme Court held as under:- “10. A combined reading of Section 141 and Section 149 IPC (supra) show that an assembly of less than five members is not an unlawful assembly within the meaning of Section 141 and cannot, therefore, form the basis for conviction for an offence with the aid of Section 149 IPC. The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault, would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly. Thus, only four accused could be said to have been the members of the assembly but such an assembly which comprises of less than five members is not an unlawful assembly within the meaning of Section 141 IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC. Where the existence of such an unlawful assembly is not proved, the conviction with the aid of Section 149 IPC cannot be recorded or sustained. The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge under Section 149 IPC. Consequently, the conviction of appellants 2 to 4 for an offence under Section 326/149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also.” 11. In Amar Singh and others versus State of Punjab AIR 1987 SC 826 , it was held as under:- “8. In our opinion, there is much force in the contention. As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of section 141, IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. In our opinion, there is much force in the contention. As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of section 141, IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under Section 148 or section 149, IPC for any offence, for, the first condition to be fulfilled in designating an assembly an “unlawful assembly” is that such assembly must be of five or more persons, as required under sections 141, IPC. In our opinion, the convictions of the appellants under sections 148 and 149 IPC cannot be sustained.” 12. It is more than settled that Section 149 IPC deals with liability for constructive criminality i.e. vicarious liability of a person for acts of others. It is combination of persons, who become punishable as sharers in an offence. Admittedly, in this case, there is only one accused and, therefore, cannot be charged for the commission of the aforesaid offences. 13. Now, I proceed to deal with the second contention regarding the offence under Section 323 IPC being time barred. Section 323 IPC reads thus:- “323. Punishment for voluntarily causing hurt - Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” 14. Section 468 of the Code provides of bar to taking cognizance after lapse of the period of limitation and reads thus:- “468. Bar to taking cognizance after lapse of the period of limitation - (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be – (a) Six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (2) The period of limitation shall be – (a) Six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. [(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]” 15. A bare perusal of the aforesaid provisions would show that no Court is competent to take cognizance of an offence after the expiry of the period of limitation and insofar as the present case is concerned, admittedly, the punishment prescribed under Section 323 IPC is one year. If that be so, then the prescribed period of limitation is only one year. 16. In the present case, the FIR was registered on 01.06.2008 while the final report was presented only on 04.01.2010 which is far beyond the prescribed period of limitation. Therefore, it can safely be concluded that the charge sheet presented against the petitioner for commission of offence under Section 323 IPC was time barred. 17. In view of the aforesaid discussion, I find merit in this petition and the same is allowed and the proceedings against the petitioner arising out of FIR No.138/2008, registered on 01.06.2008 including the proceedings pending before the learned Judicial Magistrate 1st Class, Court No.6, in Case No.176-2 of 2010, titled ‘State versus Amar Singh’ are hereby quashed and set aside, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.