TaxTMI 
TaxTMI 
2004 (3) TMI 779
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...., Nanak Singh Nishter (A-2), Nishan Singh (A-3), Dilbagh Singh (A-4) and Rajender Singh Dhingra (A-6). Ram Singh (A-9) absconded. Charge sheet was filed against A-1 to A-9 for offences punishable under Sections 120B and 302 read with Section 120B of the Indian Penal Code, 1860 (in short the 'IPC'), Section 3(3) of TADA and Section 27 of the Indian Arms Act, 1959 (in short the 'Arms Act'), read with Sections 5 and 6 of TADA. 3. The trial Court found that accused Esher Singh, (appellant in Crl. A. No. 1363/2003) was guilty of offence punishable under Section 4 of TADA and while further holding that the other allegations were not established so far as appellant Esher Singh and other co-accused are concerned. Esher Singh was convicted as afore-noted and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- with default stipulation. While Esher Singh questions legality of the conviction and sentence imposed, the State of Andhra Pradesh has questioned acquittal of the accused persons who faced trial, and their non-conviction for the charged offences. 4. The State's appeal is numbered as Criminal Appeal No.1524/2003. Balbir Sin....
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....eology in Bidar among the students. Nanak Singh Nishter (A-2) who was president of Central Gurudwara, Gowliguda and also an Executive Member of Shree Nanak Jhira Sahib, Bidar, and Gurudwara Mai Bhago at Janwada was actively assisting the deceased in his religious activities, felt disappointed and aggrieved by his non-inclusion as member of the Trust of Prabhandak Committee, Nanak Jheera Trust in 1987. Nishan Singh (A-3) was residing in Bidar since September 1987 as representative of Baba Charan Singh who was incharge of Karseva of Kurukshetra Gurudwara. Attempts to pursue deceased Joga Singh to transfer the Kar Seva agreement in his name cancelling the earlier agreement of Baba Charan Singh did not yield any result. A-1 to A-3 developed hatred against the deceased, and launched tirade against the deceased with a view to take over the seat of the deceased. Dilbagh Singh (A-4) a native of Amritsar and active member of All India Sikh Student Federation, Punjab, sought his admission in Gurunanak Dev Engineering College, Bidar, and started enlisting students from North India into his Pro-Khalistan activities and became close associate of A-3. Deepender Singh (A-5), resident of Nabha, Pa....
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....Hostel Narayanguda, Hyderabad to pay homage to departed souls of students who were killed in Bidar riots. In the meeting A-1 and A-2 proposed to hold Deewan-E Aam on 2.10.88 at Bidar Gurudwara with an ulterior motive of defaming and excommunicating the deceased and trustees and usurp the control of Gurudwara and the trust. A-1, A-2, A-3, A-4, A-6 and others marshalled their associates, and mustered their strength having successfully augmented majority among the students who attended. A-1 and A-2 gave highly inflammatory speeches making wild allegations against the deceased and levelling allegations of mal-administration of religious funds of the community, made the deceased responsible for the misery to Sikh students and accused him of having failed in his responsibility to protect the Sikhs at Bidar. In that way A-1 to A-3 could successfully make a dent in establishing a base for Pro-Khalistan movement and trying to get support of those who were openly opposing the deceased Joga Singh. A-1 and A-2 made their own henchmen as Punj Pyaras and imposed punishment of "Thankayya" on the deceased and four others holding them responsible for the death of Sikh students and for their religio....
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....evolver and ammunitions. 10. A-1 to A-3 intensified their war against the deceased by abusing, threatening, intimidating him. By the end of 1988 A-1 to A-3 could successfully establish contact with the underground dreaded terrorist Mohinder Singh (A-7) in Nanded who was taking his shelter there. Thereafter A-7 shifted to Bidar alongwith his family and took shelter with A-3 in his Dhera as a Kar Sevadar. A-5, A-8 and A-9 used to frequently move in the company of Kar Sevadar alongwith A-3, A-4 and A-7. A-8 approached Dayal Singh (PW-32), Avtar Singh (PW-26) and other residents of Hyderabad and requested them to join hands with them in removing deceased from being a religious head. A-7 shifted to Hyderabad and got accommodation through PW-26 at Hyderabad. A-1 and A-2 held secret meetings in Kishan Bagh Chavani and made efforts to enlist services of Sikh youth to liquidate deceased Joga Singh. A-1, A-2, A-3, A-4, A-5 to A-9 held number of meetings in the house of A-2. 11. In the month of February 1989, during the examination of B.E. II year at G.N.D.E. College, numbers of students including A-4 were caught while they were indulging in mal- practices. At that time deceased refused....
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....e immediately. Meanwhile Darshan Singh (PW-14) and others surrounded the house in which A-5, A-7 and A-9, tried to apprehend them, but they fled away into the dark. A-8 who made attempt to escape on Luna bearing Registration No. AEA 1326 was surrounded by them. He left the Luna and took to heels and he was chased by them and on finding no way to escape, he fired in the air to scare them and finally shot himself dead with his Revolver. 12. On receipt of the complaint a case (Cr.No.63/89) under Section 302 IPC and Sections 25 and 27 of the Arms Act was registered, inquest was conducted over the dead body, and it was sent for post mortem. Blood stained clothes of the deceased, empty cartridges and spent bullets were seized under panchanamas. Residential portion of house of A-7 was searched and a driving license, a receipt, H.P. Gas cylinder, clothes, utensils and other household articles were seized. Naganath (PW-15) identified A-7 to be Mohinder Singh alias Satwender Singh @ Satta involved in number of terrorist cases in Punjab and Haryana. C. Narasingha Rao (PW-47) seized the application form, reservation slip written by A-5 for himself and A-9 for their return journey from Delhi....
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.... of A-5 was illegal as was observed by the High Court of Andhra Pradesh in Writ Petition No.14403/1989 The High Court has categorically held that the custody was illegal for the period between 31.3.1989 and 1.10.1989. Reference was made to Kalpnath Rai v. State (Through CBI) (1997 (8) SCC 732) to contend that the conclusions drawn by the trial Court were erroneous. In essence, it was submitted that the trial Court was not justified in convicting the accused Esher Singh. 15. Learned counsel for the State submitted that A-5 had categorically stated about the involvement of A-1. Not only PWs 16 and 32 but other witnesses i.e. PWs 1, 3, 14, 17, 19, 21 and 24 spoke in detail about the role played by various accused persons. The evidence of PW-21 has not been discarded and the evidence of PW-24 should not have been dis-believed on mere surmises. The role played by accused Esher Singh was graphically described by the prosecution witnesses and the trial Court has noted them. Therefore, the consideration should not have been restricted only to the evidence of PWs 16 and 32. The pamphlet distributed were published by A-1 and it clearly indicates what was in the mind of accused persons reg....
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....version, two persons entered, fired and killed. The search for the accused started immediately when people came running. One person who was traveling on a Luna was chased committed suicide. There is evidence to show that he was A-8. The materials on record show that the deceased A-5 was connected with accused Gurmail and this also provides an additional link to the chain of circumstances. The motive of the crime has been spoken to by various witnesses. The animosity of A- 1 so far as deceased is concerned is well brought out by the evidence which shows that because of deceased's refusal to pay money he was killed. Prior to that, he was ex- communicated, was receiving threatening letters and was being made responsible for the killing of six Sikh students through riots. Significance of the statement relating to the Blue Star Operation and the proclamation of A-1 to be Deccan Bhindrawala are circumstances of great significance. The deceased accused was falsely claiming to be one Mohinder Singh, and had got an identity card in that name. But the evidence shows that he was A-8. His presence in the car used for get away and the evidence showing that he knew A-1 closely and that they ....
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....as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily." (Underlined for emphasis) 19. Crucial words in the provision are "charged and tried". The use of the expression "charged and tried" imposes cumulative conditions. Firstly, the two persons who are the accused and the co-accused in the sense used by the Legislature under Section 15, must be charged in the same trial, and secondly, they must be tried together. Kalpnath Rai's case (supra) has been overruled in Nalini's case (supra) making the position clear that the confession of a co-accused is substantive evidence. 20. Section 2(b) of the Code of Criminal Procedure, 1973 (in short the 'Code') defines "charge" as follows: "2(b) 'charge' includes any head of charge when the charge contains more heads than one:" The Code does not define what a charge is. It is the precise formulation of the specific accusation made against a person who is entitled to know its nature at the earliest stage. A charge is not an accusation made or information given in abstrac....
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..... Parliament has taken away such empowerment. Then what is it that Parliament did by adding the words in Section 15(1) and by inserting the proviso? After the amendment the Designated Court could use the confession of one accused against another accused only if two conditions are fulfilled : (1) The co-accused should have been charged in the same case along with the confessor. (2) He should have been tried together with the confessor in the same case. Before amendment the Designated Court had no such restriction as the confession of an accused could have been used against a co- accused whether or not the latter was charged or tried together with the confessor. 91. Thus the amendment in 1993 was a clear climbing down from a draconian legislative fiat which was in the field of operation prior to the amendment insofar as the use of one confession against another accused was concerned. The contention that the amendment in 1993 was intended to make the position more rigorous as for a co-accused is, therefore, untenable. " 23. So far as the appeal filed by accused Esher Singh is concerned, the basic question is that even if the confessional statemen....
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....preparatory to a disruptive activity shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. (2) For the purposes of sub-section (1), "disruptive activity" means any action taken, whether by act or by speech or through any other media or in any other manner whatsoever, - (i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India; or (ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union. Explanation. - For the purposes of this sub- section, - (a) 'cession' includes the admission of any claim of any foreign country to any part of India, and (b) 'secession' includes the assertion of any claim to determine whether a part of India will remain within the Union. (3) Without prejudice to the generality of the provisions of sub-section (2), it is hereby declared that any action taken, whether by ....
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....h Court. We do not see any substance in the doubt. Appellate power vested in this Court under Article 136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. It is a plenary power, 'exercisable outside the purview of ordinary law' to meet the pressing demands of justice (See Durga Shankar Mehta v. Thakur Raghuraj Singh (AIR 1954 SC 520). Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of this Court nor inhibits anyone from invoking the Court's jurisdiction. The power is vested in this Court but the right to invoke the Court's jurisdiction is vested in no one. The exercise of the power of this Court is not circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice this Court cannot refrain from doing its duty and abstain from interfering on the ground that a private party and not the State has invoked the Court's jurisdiction. We do not have slightest doubt that we can entertain appeals against judgments of acquittal by the High Co....
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....n the power vested in this Court. The founding fathers unarguably intended in the very terms of Article 136 that it shall be exercised by the judges of the highest Court of the land with scrupulous adherence to settled judicial principles, well established by precedents in our jurisprudence. 32. It is manifest that Article 136 is of composite structure, is power-cum-procedure - power in that it vests jurisdiction in this Court and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process with the avowed purpose of averting miscarriage of justice. In the instant case, both the State and Balbir Singh (son of the deceased) have questioned correctness of the impugned judgment. Appeal filed by Balbir Singh is first in point of time. We are of the view that on the facts of the case, there is no question of holding the appeal filed by Balbir Singh to be not maintainable. 33. The aspects highlighted by learned counsel for the State and Balbir Singh do not disturb the positive conclusions of the trial Court about the absence of any positive and cogent evidence so far as the respondents....
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....and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to encompass all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See: American Jurisprudence Vol.II See 23, p. 559). For an offence punishable under section 120-B, prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a crimi....
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.... reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only. "as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it". "In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be ....
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....the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference. 40. The provisions of Section 120A and 120B, IPC have brought the law of conspiracy in India in line with the English Law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English Law on this matter is well settled. Russell on Crime (12 Ed.Vol.I, p.202) may be usefully noted- "The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties, agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough." Glanville Williams in the "Criminal Law" (Second Ed. P. 382) states- "The question arose in an lowa case, but it was discussed in terms of conspiracy rathe....
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....person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in section 120B [See: S.C. Bahri v. State of Bihar (AIR 1994 SC 2420)] 42. The conspiracies are not hatched in open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence. [See: E.K. Chandrasenan v. State of Kerala (AIR 1995 SC 1066)]. 43. In Kehar Singh and Ors. v. The State (Delhi Administration) [AIR 1988 SC 1883 at p. 1954], this Court observed: "Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or ....
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....ators does an act or series of acts, he would be held guilty under Section 120-B IPC. 45. In Ajay Agarwal vs. Union of India and Ors. (JT 1993 (3) SC 203), it was held as follows:- x x x x x x 8. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement; (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones' case that an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg and House of Lords in unanimous decision reiterated in Quinn v. Leathem: ....
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....e that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication." 46. After referring to some judgments of the United States Supreme Court and of this Court in Yash Pal Mittal's case (supra) and Ajay Aggarwal's case (supra) the Court in State of Maharashtra v. Som Nath Thapa (referred to in Kehar Singh's case (supra) summarized the position of law and the requirements to establish the charge of conspiracy, as under: (SCC p. 668, para 24). "24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to nay lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the ch....