NDPS Act: Whether a joint communication of the right available under Section 50(1) to the accused would frustrate the very purport of Section 50 of the NDPS Act

Head Notes:

1.   In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual.

2.   It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.78 OF 2005

State of Rajasthan                                                        … Appellant

Vs.

Parmanand & Anr.                                                  … Respondents

JUDGMENT: (SMT.) RANJANA PRAKASH DESAI, J.

1.   The respondents were tried by the Special Judge (NDPS Cases), Chhabra, District Baran for offences under Section 8 read with Section 18 and under Section 8 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act).

2.    The case of the prosecution was that on 13/10/1997 during Kota Camp at Iklera, P.N. Meena, Sub-Inspector, Office of the Narcotics Commissioner, Kota received information at 1900 hours in the evening that the respondents were to handover about 10 Kg opium on 14/10/1997 in the morning between 4.00 a.m. to 6.00 a.m. at Nangdi-Tiraha, Iklera, Chhipabaraud Road to a smuggler. This information was entered by SI Meena in the diary and he forwarded it to the Investigating Officer J.S. Negi, Superintendent. J.S. Negi sent this information through Constable B.L. Meena to Assistant Narcotic Commissioner, Kota. Thereafter, raiding party was formed. The raiding party was headed by Superintendent J.S. Negi. The raiding party reached Nangdi-Tiraha by a Government vehicle. Independent witnesses Ramgopal and Gopal Singh were called by SI Qureshi. Their consent was obtained. At about 4.25 a.m., the respondents came from the village Rajpura. On seeing the raiding party, they tried to run away but they were stopped. Enquiry was made with both the respondents in the presence of the independent witnesses by SI Qureshi. The respondents gave their names. Respondent No. 1 Parmanand had one white colour gunny bag of manure in his left hand. SI Qureshi told the respondents that he had to take their search. They were told about the provisions of Section 50 of the NDPS Act. They were told that under Section 50(1) of the NDPS Act, they had a right to get themselves searched in the presence of any nearest Magistrate or any gazetted officer or in the presence of Superintendent J.S. Negi of the raiding party. One written notice to that effect was given to them. On this notice, appellant Surajmal gave consent in writing in Hindi for himself and for appellant Parmanand and stated that they are ready to get themselves searched by SI Qureshi in the presence of Superintendent J.S. Negi. He also put his thumb impression. Thereafter, bag of respondent No. 1 Parmanand was searched by SI Qureshi. Inside the bag in a polythene bag some black material was found. The respondents told him that it was opium and they had brought it from the village. The weight of the opium was 9 Kg. 600 gms. Necessary procedure of drawing samples and sealing was followed. The respondents were arrested. After completion of the investigation, respondent no. 1 Parmanand was charged for offence under Section 8 read with Section 18 of the NDPS Act and respondent No.2 Surajmal was charged for offence under Section 8 read with Section 18 and for offence under Section 8 read with Section 29 of the NDPS Act. The prosecution examined 11 witnesses. The important witnesses are PW-5 J.S. Negi, the Superintendent, PW-9 SI Meena and PW-10 SI Qureshi. The respondents pleaded not guilty to the charge. They contended that the police witnesses had conspired and framed them. The case is false.

3.    Learned Special Judge convicted respondent No.1 Parmanand under Section 8 read with Section 18 of the NDPS Act and respondent No.2 Surajmal under Section 8 read with Section 28 of the NDPS Act. They were sentenced for 10 years rigorous imprisonment each and a fine of Rs.10 lakhs each. In default of payment of fine, they were sentenced to undergo rigorous imprisonment for two years.

4.    Aggrieved by the said judgment and order, the respondents preferred an appeal to the Rajasthan High Court. By the impugned order, the Rajasthan High Court acquitted the respondents. Hence, this appeal by the State.

5.    Mr. Imtiaz Ahmed, learned counsel for the State of Rajasthan submitted that the High Court was wrong in coming to the conclusion that there was no compliance with Section 50 of the NDPS Act. Counsel submitted that PW-10 SI Qureshi has clearly stated that the respondents were communicated their right under Section 50(1) of the NDPS Act. A written notice was also given to them and only after they consented to be searched by PW-10 SI Qureshi in the presence of PW-5 J.S. Negi, the Superintendent, that the search of their person and search of bag of respondent No.1 Parmanand was conducted. Counsel submitted that the High Court was also wrong in disbelieving independent pancha witnesses. Counsel urged that the impugned order is perverse and deserves to be set aside.

6.    Ms. Nidhi, learned counsel for the respondents, on the other hand, submitted that admittedly notice under Section 50 of the NDPS Act was a joint notice. The respondents were entitled to individual notice. The search is, therefore, vitiated. In this connection, counsel relied on judgment of the Punjab and Haryana High Court in Paramjit Singh and Anr. v. State of Punjab 1997(1) CRIMES 242 and judgment of the Bombay High Court in Dharamveer Lekhram Sharma and Another v. The State of Maharashtra and Ors. 2001(1) CRIMES 586 . Counsel submitted that search was a farce. The High Court has, therefore, rightly acquitted the respondents.

7.    The question is whether Section 50 of the NDPS Act was complied with or not. Before we go to the legalities, it is necessary to see what exactly the important police witnesses have stated about compliance of Section 50 of the NDPS Act. The gist of the evidence of the police witnesses PW-5 J.S. Negi, the Superintendent, PW-9 SI Meena and PW- 10 SI Qureshi is that the respondents were informed that they have a right to be searched in the presence of a gazetted officer or a nearest Magistrate or before J.S. Negi, the Superintendent, who was present there. They were given a written notice. On that notice, respondent No.2 gave his consent in Hindi in his handwriting that he and respondent No.1 Parmanand are agreeable to be searched by PW-10 SI Qureshi in the presence of PW-5 J.S. Negi, the Superintendent. He signed on the notice in Hindi and put his thumb impression. Respondent No.1 Parmanand did not sign. There is nothing to show that respondent No.1 Parmanand had given independent consent. Search was conducted. PW-10 SI Qureshi did not find anything on the person of the respondents. Later on, he searched the bag which was in the left hand of respondent No.1 - Parmanand. In the bag, he found black colour material which was tested by chemical kit. It was found to be opium.

8.    In State of Punjab v. Balbir Singh (1994) 3 SCC 299, this Court held that Section 50 of the NDPS Act is mandatory and noncompliance thereof would vitiate trial. In State of Himachal Pradesh v. Pirthi Chand  (1996) 2 SCC 37 , this Court held that breach of Section 50 does not affect the trial. There were divergent views on this aspect and, therefore, a reference was made to the Constitution Bench. Out of the three questions of law, which the Constitution Bench dealt with in State of Punjab v. Baldev Singh (1999) 6 SCC 172 , the question which is relevant for the present case is whether it is the mandatory requirement of Section 50 of the NDPS Act that when an officer duly authorized under Section 42 of the NDPS Act is about to search a person, he must inform him of his right under sub-section (1) thereof of being taken to the nearest gazetted officer or nearest Magistrate. The conclusions drawn by the Constitution Bench, which are relevant for this case could be quoted.

1)   “ That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

2)    That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.

3)    That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazette officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.”

9.    In this case, the conviction is solely based on recovery of opium from the bag of respondent No.1 - Parmanand. No opium was found on his person. In Kalema Tumba v. State of Maharashtra  (1999) 8 SCC 257 , this Court held that if a person is carrying a bag or some other article with him and narcotic drug is recovered from it, it cannot be said that it was found from his person and, therefore, it is not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate in compliance of Section 50 of the NDPS Act. In State of Himachal Pradesh v. Pawan Kumar  (2005) 4 SCC 350, three- Judge Bench of this Court held that a person would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container etc. can under no circumstances be treated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the NDPS Act. The question is, therefore, whether Section 50 would be applicable to this case because opium was recovered only from the bag carried by respondent No.1 - Parmanand.

10.      In Dilip & Anr. v. State of Madhya Pradesh (2007) 1 SCC 450   , on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. This Court held that provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. This Court confirmed the acquittal of the accused.

11.      In Union of India v. Shah Alam (2009) 16 SCC 644  , heroin was first recovered from the bags carried by the respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the respondents on that ground.

12.      Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.

13.      It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 – Surajmal is stated to have signed for himself and for respondent No.1 – Parmanand. Respondent No.1 Parmanand did not sign.

14.      In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate.

Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.

15.      We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW- 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court’s view is perverse. The appeal is, therefore, dismissed.

….……………………………….J.

(RANJANA PRAKASH DESAI)

…………………………………..J.

(MADAN B. LOKUR)

NEW DELHI;

FEBRUARY 28, 2014.

Section 482 Code of Criminal Procedure, 1973 - Continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under Section 482 Cr.P.C.

Head Notes:

1. In the present case, having regard to the fact that the liability to make good the monetary loss suffered by the bank had been mutually settled between the parties and the accused had accepted the liability in this regard, the High Court had thought it fit to invoke its power under Section 482 Cr.P.C. We do not see how such exercise of power can be faulted or held to be erroneous.
2. Section 482 of the Code inheres in the High Court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the process of law or to serve the ends of justice. While it will be wholly unnecessary to revert or refer to the settled position in law with regard to the contours of the power  available under Section 482 Cr.P.C. it must be remembered that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under Section 482 Cr.P.C.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.517 OF 2014

(Arising out of Special Leave Petition (Crl) No. 6138 OF 2006)

CBI, ACB, MUMBAI .                                              ... APPELLANT (S)

VERSUS

NARENDRA LAL JAIN & ORS.                          ... RESPONDENT (S)

J U D G M E N T: RANJAN GOGOI, J.

1.   Leave granted.

2.    The appellant, Central Bureau of Investigation (CBI) ACB, Mumbai seeks to challenge an order dated 28.10.2005 passed by the High Court of Bombay quashing the criminal proceedings against the respondents Narendra Lal Jain, Jayantilal L. Shah and Ramanlal Lalchand Jain. The aforesaid respondents had moved the High Court under Section 482 Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) challenging the orders passed by the learned Trial Court refusing to discharge them and also questioning the continuance of the criminal proceedings registered against them. Of the three accused, Jayantilal L. Shah, the court is informed, has died during the pendency of the present appeal truncating the scope thereof to an adjudication of the correctness of the decision of the High Court in so far as accused Narendra Lal Jain and Ramanlal Lalchand Jain are concerned.

3.    On the basis of two FIRs dated 22.03.1993, R.C. No. 21(A) of 1993 and R.C. No.22 (A) of 1993 were registered against the accused-respondents and several officers of the Bank of Maharashtra. The offences alleged were duly investigated and separate chargesheets in the two cases were filed on the basis whereof Special Case No. 15 of 1995 and Special Case No. 20 of 1995 were registered in the Court of the Special Judge, Mumbai. In the chargesheet filed, offences under Sections 120-B/420 IPC and Sections 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 corresponding to Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short “PC Act”) were alleged against the accused persons. In so far as the present accused-respondents are concerned the gravamen of the charge is that they had conspired with the bank officials and had projected inflated figures of the creditworthiness of the companies represented by them and in this manner had secured more advances/loans from the bank than they were entitled to.

4.    While the criminal cases were being investigated the bank had instituted suits for recovery of the amounts claimed to be due from the respondents. The said suits were disposed of in terms of consent decrees dated 23.04.2001. Illustratively, the relevant clause of the agreement on the basis of which the consent decrees were passed reads as follows:

“10. Agreed and declared that dispute between the parties hereto were purely and simply of civil nature and on payment mentioned as aforesaid made by the Respondents the Appellants have no grievance of whatsoever nature including of the CBI Complaint against the Respondents.”

5.    Applications for discharge were filed by the accused respondents which were rejected by the learned Trial Court by order dated 04.09.2011. The learned Trial Court, thereafter, proceeded to frame charges against the accused. In so far as the present accused-respondents are concerned charges were framed under Sections 120-B/420 of the Indian Penal Code whereas against the bank officials, charges were framed under the different provisions of the Prevention of Corruption Act, 1988 (PC Act). The challenge of the respondents to the order of the learned Trial Court refusing discharge and the continuation of the criminal proceedings as a whole having been upheld by the High Court and the proceedings in question having been set aside and quashed in respect of the respondent, the CBI has filed the present appeal challenging the common order of the High Court dated 28.10.2005.

6.    We have heard Mr. P.P. Malhotra, learned Additional Solicitor General appearing on behalf of the appellant and Mr. Sushil Karanjkar, learned counsel appearing on behalf of Respondent Nos. 1 and 4.

7.    Shri Malhotra, learned Additional Solicitor General, has taken us through the order passed by the High Court. He has submitted that the High Court had quashed the criminal proceeding registered against the accused-respondents only on the ground that the civil liability of the respondents had been settled by the consent terms recorded in the decree passed in the suits. Shri Malhotra has submitted that when a criminal offence is plainly disclosed, settlement of the civil liability, though arising from the same facts, cannot be a sufficient justification for the premature termination of the criminal case. Shri Malhotra has also submitted that the offence under Section 120-B alleged against the accused respondents is not compoundable under Section 320 Cr.P.C.; so also the offences under the PC Act. Relying on the decision of a three Judges Bench of this Court in Gian Singh vs. State of Punjab and Another (2012) 10 SCC 303 , Shri Malhotra has submitted that though it has been held that the power of the High Court under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal Court for compounding of offence under Section 320 of the Cr.P.C., it was made clear that the High Court must have due regard to the nature and gravity of the offences alleged before proceeding to exercise the power under Section 482 Cr.P.C. Specifically drawing the attention of the Court to para 61 of the report in Gian Singh (supra) Shri Malhotra has submitted that “any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act…. cannot provide for any basis for quashing criminal proceeding involving such offences”. Shri Malhotra had contended that having regard to the gravity of the offences alleged, which offences are prima facie made out, in as much as charges have been framed for the trial of the accused-respondents, the High Court was not justified in quashing the criminal proceedings against the accused respondents.

8.   Per contra, the learned counsel for the respondents (accused) have submitted that the High Court, while quashing the criminal proceedings against the respondents (accused), had correctly relied on the judgments of this Court in Central Bureau of Investigation, SPE, SIU(X), New Delhi vs. Duncans Agro Industries Ltd., Calcutta (1996) 5 SCC 591 and B.S.Joshi and Others vs. State of Haryana and Another AIR 2003 SC 1387. Learned counsel has submitted that though simultaneous criminal and civil action on same set of facts would be maintainable, in Duncans Agro Industries Ltd. (supra) it has been held that the disposal of the civil suit for recovery, on compromise upon receipt of payments by the claimants, would amount to compounding of offence of cheating. No error is, therefore, disclosed in the order of the High Court insofar as the offence under Section 420 IPC is concerned. As for the offence under Section 120-B it is submitted that this Court in B.S. Joshi (supra) has held that the power under Section 482 Cr.P.C. to quash a criminal proceeding is not limited by the provisions of Section 320 Cr.P.C. and even if an offence is not compoundable under Section 320 Cr.P.C., the same would not act as a bar for the exercise of power under Section 482 Cr.P.C. As the dispute between the parties have been settled on the terms of the compromise decrees, it is submitted that the High Court had correctly applied the principles laid down in B.S. Joshi (supra) to the facts of the present case.

9.    Learned counsel has further pointed out that the charges framed against the accused-respondents are under Section 120-B/420 of the Indian Penal Code and the respondents not being public servants, no substantive offence under the PC Act can be alleged against them. The relevance of the views expressed in para 61 of the judgment of this Court in Gian Singh (supra), noted above, to the present case is seriously disputed by the learned counsel in view of the offences alleged against the respondents. Learned counsel has also submitted that by the very same impugned order of the High Court the criminal proceeding against one Nikhil Merchant was declined to be quashed on the ground that offences under Sections 468 and 471 of the IPC had been alleged against the said accused. Aggrieved by the order of the High Court the accused had moved this Court under Article 136 of the Constitution. In the decision reported in Nikhil Merchant vs. Central Bureau of Investigation and Another  (2008) 9 SCC 677 this Court understood the charges/allegations against the aforesaid Nikhil Merchant in the same terms as in the case of the accused-respondents, as already highlighted. Taking into consideration the ratio laid down in B.S. Joshi (supra) and the compromise between the bank and the accused Nikhil Merchant (on the same terms as in the present case) the proceeding against the said accused i.e. Nikhil Merchant was quashed by the Court taking the view that the power and the Section 482 Cr.P.C. and of this Court under Article 142 of the Constitution cannot be circumscribed by the provisions of Section 320 Cr.P.C. It is further submitted by the learned counsel that the correctness of the view in B.S. Joshi (supra) and Nikhil Merchant (supra) were referred to the three Judges Bench in Gian Singh (supra). As already noted, the opinion expressed in Gian Singh (supra) is that the power of the High Court to quash a criminal proceeding under Section 482 Cr.P.C. is distinct and different from the power vested in a criminal court by Section 320 Cr.P.C. to compound an offence. The conclusion in Gian Singh (supra), therefore, was that the decisions rendered in B.S. Joshi (supra) and Nikhil Merchant (supra) are correct.

10.        In the present case, as already seen, the offence with which the accused-respondents had been charged are under Section 120-B/420 of the Indian Penal Code. The civil liability of the respondents to pay the amount to the bank has already been settled amicably. The terms of such settlement have been extracted above. No subsisting grievance of the bank in this regard has been brought to the notice of the Court. While the offence under Section 420 IPC is compoundable the offence under Section 120-B is not. To the latter offence the ratio laid down in B.S. Joshi (supra) and Nikhil Merchant (supra) would apply if the facts of the given case would so justify. The observation in Gian Singh (supra) (para 61) will not be attracted in the present case in view of the offences alleged i.e. under Sections 420/120B IPC.

11.        In the present case, having regard to the fact that the liability to make good the monetary loss suffered by the bank had been mutually settled between the parties and the accused had accepted the liability in this regard, the High Court had thought it fit to invoke its power under Section 482 Cr.P.C. We do not see how such exercise of power can be faulted or held to be erroneous. Section 482 of the Code inheres in the High Court the power to make such order as may be considered necessary to, inter alia, prevent the abuse of the process of law or to serve the ends of justice. While it will be wholly unnecessary to revert or refer to the settled position in law with regard to the contours of the power  available under Section 482 Cr.P.C. it must be remembered that continuance of a criminal proceeding which is likely to become oppressive or may partake the character of a lame prosecution would be good ground to invoke the extraordinary power under Section 482 Cr.P.C.

12.        We, therefore, decline to interfere with the impugned order dated 28.10.2005 passed by the High Court and dismiss this appeal. We, however, make it clear that the proceedings in Special Case No. 15/95 and 20/95 stands interfered with by the present order only in respect of accused-respondents Narendra Lal Jain and Ramanlal Lalchand Jain.

.…………………………CJI.

[P. SATHASIVAM]

........………………………J.

[RANJAN GOGOI]

..........……………………J.

[N.V.RAMANA]

NEW DELHI,

FEBRUARY 28, 2014.

SC: Defined an attempt to murder & House-trespass – A n act which cause death if done , but left with injury or no injury on the body on prevention amounts to an Attempt to murder.

Head Notes:

1.      Section 452 IPC- There is no doubt that the trespass was into a house and that the appellant entered the office having prepared to assault the victim and in any case for putting him in fear of hurt or of assault. There is nothing in Section 452 IPC to suggest that the use to which the house is put makes any difference. It is not the requirement of Section 452 IPC that for a trespass to be an offence the house must be a private place and not an office. The law protects any house from trespass, vide Section 448 IPC and further protects persons within the house from being assaulted or even put in fear of hurt or wrongful restraint within their own house.

2.    It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him he should die. We also do not find any merit in the contention on behalf of the appellant that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thums-up bottle and a telephone wire used as weapons.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 466 OF 2014

[Arising out of SLP (Crl.) No. 7044 of 2007]

PASUPULETI SIVA RAMAKRISHNA RAO                               …. APPELLANT

VERSUS

STATE OF ANDHRA PRADESH & ORS.                            …. RESPONDENTS

JUDGMENT: S. A. BOBDE, J.

1.   Leave granted.

2.    The appellant/defacto complainant has filed this appeal against the judgment dated 1st February, 2007 passed by the learned Single Judge of the High Court of Judicature at Andhra Pradesh. The High Court allowed the appeal in part, and acquitted the accused for the offences under Section 452 read with Section 34 of the Indian Penal Code [hereinafter referred to as “IPC”]. The High Court further modified the conviction and sentence under Section 307 read with Section 34 IPC to one -- under Section 324 IPC and accordingly reduced the sentence of 10 years to rigorous imprisonment for two months each and also to fine of Rs. 2,000/- each, in default to suffer simple imprisonment for a period of six months. Further, an amount of Rs. 4,000/- is directed to be paid by each of the accused collectively as compensation to P.W. 1 (Pasupuleti Siva Ramakrishna Rao) – the victim. Earlier, the Trial Court convicted the accused as follows:

A-1 to A-4 under Section 452 read with Section 34 IPC for rigorous imprisonment for 7 years and fine of Rs. 100/- each, in default, to suffer simple imprisonment for a period of 3 months each and under Section 307 read with Section 34 IPC for rigorous imprisonment for 10 years and fine of Rs. 100/- each, in default, to suffer simple imprisonment for a period of 3 months each.

Aggrieved by the Judgment passed by the High Court, the present appeal is filed.

3.    The prosecution case is that the victim P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was the President of Bhimavaram Taluk Lorry Workers Union. A-1 - Chintha Srinivasa Rao @ Bandi Srinu and A-2 - Chintha Krishna @ Bandi are brothers. A-4 -Chintha Lakshmana Rao is their cousin. A-3 -Addla - Umamaheswara Rao is the close associate of A-1, A-2 and A-4. They are all residents of Bhimavaram. About a fortnight prior to the date of incident – 20.04.1998, the victim P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and some other Lorry Workers collected Rs. 10,000/- as donations to perform the marriage of the daughter of a poor lorry worker. That incensed the accused who believed that P.W. 1 (Pasupuleti Siva Ramakrishna Rao) ought not to have collected donations from their locality. On 20.04.1998 at about 8.00 pm when P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was in the Lorry Workers Union Office near Anakoderu Canal in Undi Road, Bhimavaram, the accused armed with deadly weapons entered the office, abused P.W. 1 (Pasupuleti Siva Ramakrishna Rao) in filthy language and threatened him with death because he had collected donations from their area. They attacked him. A-1 - Chintha Srinivasa Rao hit him on his head with the cool drink bottle causing a grievous injury and instigated other accused to tie a telephone wire around his neck to kill him. He along with A-2 - Chintha Krishna and A-3 - Addla Umamaheswara Rao tied the telephone wire around the neck of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and pulled it from both sides to strangulate him with the intention to kill him. A-4 - Chintha Lakshmana Rao beat him on his right cheek with an iron rod. A-2 - Chintha Krishna beat him on the forehead and A-3 - Addla Umamaheswara Rao and A-4 - Chintha Lakshmana Rao beat him on the left eye and on the cheek. On making a hue and cry, P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was rescued by others, who were present. On a complaint, Crime No. 85/98 under Sections 307 and 452 IPC read with Section 34 IPC was registered, investigated and a charge sheet was filed against all the accused. Charges were framed and read over to the accused. They did not plead guilty.

4.    P.Ws. 1 to 11 were examined and Exhibits P1 to P17 were marked apart from M.Os. 1 to 5 on behalf of the prosecution. No oral evidence was adduced on behalf of the accused.

5.    The learned trial Judge convicted and sentenced the accused as indicated above.

6.    P.W. 3 (Kotipalli Srinivas) and P.W. 5 (Sunkara Sreenivasa Rao) eye witnesses were declared hostile. P.W. 7 (Marri Sambhasiva) is the circumstantial witness. P.W. 8 (Dirisala Murali) is the photographer. P.W. 9 (Grandhi Sree Rama Murthy) is the panch witness.

7.    P.W. 10 (Dr. B. Swarajya Lakshmi, C.A.S.) is the medical officer, who examined P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and found the following injuries:

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“1. Irregular bleeding lacerated injury of 3 cm x ¼ cm x ¼ cm size present on the left parietal region of the scalp.

2. A contusion of 3 cm x size present lateral to the left eye with overlying abrasion of ¼ cm size red in colour.

3. A contusion of 2 cm x 1 cm size present on the left eye upper eye lid.

4. A contusion of 4 cm with abrasion of ¼ cm size present lateral on the right side of the fore head.

5. Ligature mark of 34 cm x 0.5 cm size present below the thyroid cartilage on the front, right side and left side of the neck, red in colour.

6. A contusion of 2 cm x 1 cm size present on the right temple.

7. A contusion of 2 cm x 2 cm size present on the right cheek.

8. An oblique abrasion of 10 cm x 5 cm size present on the ventral aspect of the left arm, red in colour.”

8.    The Medical Officer [MO] opined that Injury No. 5 endangered the life of P.W. 1 (Pasupuleti Siva Ramakrishna Rao). That the other injuries are simple in nature and could have been caused as alleged.

9.    P.W. 1 (Pasupuleti Siva Ramakrishna Rao) deposed that he collected donations for performing the marriage of the daughter of Pasupuleti Satyanarayan, a driver and a poor man. The accused questioned and threatened him about the collection of contribution from their territory and warned him that they would take away his life. On 20.04.1998 at about 8.00 PM when he was in the Lorry Workers Union Office, the accused trespassed into the Union Office and abused him. They told him that he cannot become a leader of their territory and collect donations and they would not leave the Office unless they beat him. A-1 - Chintha Srinivasa Rao beat him on his head with a cool drink (Thums up) bottle and said he should die. He directed others to tie a telephone wire around his neck therefore A-2 - Chintha Krishna beat him on the forehead and A-3 – Addla Umamaheswara Rao tied a telephone wire around his neck and pulled wire. Then A-4 - Chintha Lakshmana Rao beat him with the rod on his right cheek along with abuses. A-2 – Chintha Krishna also beat him with the rod on his forehead and A-3 - Addla Umamaheswara Rao and A-4 - Chintha Lakshmana Rao beat him on the upper side of his eyebrow and his cheek. He named others who were present and intervened to rescue him stating that but for that he would have been killed. His shirt was stained with his blood. They left behind the broken Thums-up bottle, telephone wire and iron rod. He was hospitalized for about 20 days. In cross examination his version was not shaken. He accepted that the accused were not armed with any weapon and said that the Thums-up bottle broke on his head, because of the impact. The deposition of other witnesses support the version of the injured witness - P.W. 1 (Pasupuleti Siva Ramakrishna Rao). We have not referred to the depositions of witnesses who have been declared hostile since such declaration is not of much consequences in this case. The other depositions are in tune with the deposition of PW1, the injured witness.

10.      The Trial Court correctly appreciated the evidence and rejected the argument that the other witnesses were not reliable because they were interested witnesses. As regards charge under Section 34 IPC, the Trial Court relied on the settled position in law that it is not necessary that there should be a clear positive evidence about the meeting of mind before the occurrence and that if there are more than one accused a common intention to kill can be inferred from the circumstances of the case. The prosecution need not prove the overt act of the accused. As regards the charge under Section 452 IPC the Trial Court held that there was clear intention of accused here and that it was clearly established that the accused went to the office of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) in a car and the other circumstances clearly establish that there was preparation for committing the offence. As noticed earlier, the Trial Court convicted and sentenced accused under Section 452 IPC for 7 years and under Section 307 IPC for 10 years read with Section 34 IPC.

11.      The High Court in appeal, referred to the deposition of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) where he had honestly admitted that accused did not come there armed with any weapon. The Appellate Court observed that the injuries were not only simple but were trivial. As regards Injury No. 5, it observed that though the Medical Officer stated that the injury was dangerous to life, it is not clear as to how the witness stated so, meaning thereby that there was no explanation for the medical opinion. Even though the High Court noticed that this injury is a ligature mark of 34 cm x 0.5 cm size around the neck. The High Court accepted that the accused tied a telephone wire around the neck of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and pulled it from both sides but observed that this act may not actually amount to being dangerous. It was of the opinion that if a knife is used and only a grazing injury is caused but no actual stabbing is done on any vital part of the body, it cannot be said that the injury is dangerous. Further observing that no intention could be attributed to the accused to cause the death of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) since the accused had not come to the scene with dangerous weapon or caused injuries on the vital part of the body, the High Court modified the conviction under Section 307 IPC read with Section 34 IPC to Section 324 IPC.

12.      As regards the charge under Section 452 IPC, the High Court observed that the incident occurred when P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was in the Lorry Workers Union Office and not at any private place and hence ipso facto set aside the conviction and sentence under Section 452 IPC read with Section 34 IPC.

13.      During the pendency of this matter, respondent Nos. 4 & 5, namely, Addla Umamaheswara Rao (accused No. 3) and Chintha Lakshmana Rao (accused No. 4) expired. Hence the special leave petition insofar as those respondents has already abated, vide order dated 04.02.2014.

14.      Shri Altaf Ahmed, senior advocate, appearing for respondents 2 to 5 vehemently supported the Judgment of the High Court to the extent that it has rightly held that Section 307 IPC is not attracted and neither was Section 452 IPC. He also opposed the conviction under Section 324 IPC on the ground that no dangerous weapon or means were used for causing the injury which according to the learned counsel was simple in nature.

15.      As regards the act of the tying the telephone wire around the neck and pulling it on both sides and causing an injury thereby, the learned counsel for the accused, heavily relied on a statement in the cross examination of the Medical Officer that the Injury No. 5 is simple in nature and the further statement that if the strangulation is of high nature the thyroid bone may be dislocated and ruptured and that there is no danger to life unless there is dislocation or rupture of the thyroid bone.

16.      It is not possible to accept this contention in the circumstances of the case that the act of strangulating a person by the throat by a telephone wire and pulling it from both sides, which is proved here, does not amount to the commission of the offence of attempt to commit murder under Section 307 IPC. The first part makes any act committed with the intention or knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore hurt, it is punishable with imprisonment for life. The Section reads as under:

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“307. Attempt to murder.-- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempts by life convicts. - When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]

Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place A has committed the offence defined by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of [the first paragraph of] this section.

(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A' s keeping; A has not yet committed the offence in this section. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in this section.”

17.     There is no merit in the contention that the statement of Medical Officer that there is no danger to life unless there is dislocation or rupture of the thyroid bone due to strangulation means that the accused did not intend, or have the knowledge, that their act would cause death. The circumstances of this case clearly attract the second part of this Section since the act resulted in injury No.5 which is a ligature mark of 34 cm x 0.5 cm. It must be noted that Section 307 IPC provides for imprisonment for life if the act causes ‘hurt’. It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused since the victim was strangulated after throwing a telephone wire around his neck and telling him he should die. We also do not find any merit in the contention on behalf of the appellant that there was no intention to cause death because the victim admitted that the accused were not armed with weapons. Very few persons would normally describe the Thums-up bottle and a telephone wire used as weapons. That the victim honestly admitted that the accused did not have any weapons cannot be held against him and in favour of the accused.

18.      We are thus of the view that this is a clear case of intention to commit the murder of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) the appellant and the accused acted in concert and committed an offence under Section 307 IPC. As regards the setting aside of the conviction by the High Court under Section 452 IPC, we find the reasoning completely unacceptable and untenable. The High Court has simply set aside the conviction of the accused under Section 452 IPC read with Section 34 IPC only on the ground that the victim was sitting at the Lorry Workers Union Office and not at any private place. Section 452 of the IPC reads as follows:

“452. House-trespass after preparation for hurt, assault or wrongful restraint.- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

19.      There is no doubt that the trespass was into a house and that the appellant entered the office having prepared to assault the victim and in any case for putting him in fear of hurt or of assault. There is nothing in Section 452 IPC to suggest that the use to which the house is put makes any difference. It is not the requirement of Section 452 IPC that for a trespass to be an offence the house must be a private place and not an office. The law protects any house from trespass, vide Section 448 IPC and further protects persons within the house from being assaulted or even put in fear of hurt or wrongful restraint within their own house.

20.      We thus find that the accused were not entitled to be acquitted for the offences under Section 452 IPC read with Section 34 IPC.

21.      We accordingly set aside the judgment of the High Court and restore the Judgment of the Trial Court dated 31st July, 2003 passed by the learned Assistant Sessions Judge, Bhimavaram in Sessions Case No. 234 of 1999. The respondent Nos. 2 [A-1- Chintha Srinivasa Rao] and 3 [A-2-Chintha Krishna] are sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 100/- each, in default to suffer simple imprisonment for a period of three months each for the offence under Section 452 with Section 34 IPC. The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and 3 [A-2- Chintha Krishna] are also sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 100/- each, in default simple imprisonment for a period of three month each for the offence under Section 307 read with Section 34 IPC. Both the sentences shall run concurrently. Sentence already undergone, if any, shall be set off.

22.      Accordingly this appeal is allowed. The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and 3 [A-2-Chintha Krishna] are directed to surrender before Judicial Magistrate/Superintendent of Police concerned forthwith. In case, they failed to do so within one month, steps be taken, in accordance with law, to apprehend them.

.....................………………..J.

[H.L. Dattu]

…..............………………………J.

[S.A. Bobde]

New Delhi,

February 20, 2014