Sen, J. - (1.) The State Government of West Bengal and the complainant Mohd. Abu Bakkar Siddique Molla have come up in appeal by way of special leave, from the judgment and order of a Division Bench (Sukumar Chakravarty and Govinda Chandra Chatterjee, JJ.) of the High Court of Calcutta dated August 14, 1986 setting aside the finding and sentences recorded by Shri S. K. Mitra, Additional Sessions Judge, 24 Paraganas, 14th Court, Alipore dated April 4, 1985 in Sessions Trial No. 3(8) of 1983 directing retrial of the respondents before us 16 in number, on the ground of material defect in the framing of the charges which, according to the learned Judges, had occasioned in failure of justice. The High Court held that (1) -it appears from the heads of the charges framed by the learned Additional Sessions Judge that the principal accused Laisal Haque was charged along with other accused persons under S. 302 read with S. 149 of the Indian Penal Code, 1860 alleging that in furtherance of the common object of killing the deceased Gulam Rabbani and injure others, all the rioters committed the murder of Gulam Rabbani. If such a charge was framed against all the accused persons including Laisal Haque, there was no warrant of framing a charge against the accused Laisal Haque under S. 302 simpliciter, 'without making that charge as an alternative charge. (2) The charge framed by the learned Additional Sessions Judge as against the accused persons was materially defective inasmuch as it was a 'rolled up charge', the common object of the unlawful assembly being to murder Golam Rabbani and injure others. The use of the words 'injure others' without specifically mentioning the names of the persons who were injured made the charge vague and indefinite. Instead the learned Additional Sessions Judge ought to have framed separate and distinct charges for the assault and causing of grievous hurt in respect of each of the persons assaulted. (3) The judgment of the learned Additional Sessions Judge suffers from a serious infirmity in that he had in a slipshod manner not discussed at all the evidence separately under different heads of the charges framed against each of the Accused persons. While convicting the accused persons under S. 324 read with S. 149 he had not discussed which of the accused persons caused hurt to whom.
(2.) In the course of the judgment the learned Judges have quoted a portion of the judgment of the learned Sessions Judge recording a finding of guilt, and observed: "It is, therefore, clear that while arriving at the aforesaid finding, the learned trial Judge has not discussed about the common object although he convicted the aforesaid accused persons under Section 148, I. P.C and under S. 147, I.P.C. It also appears that while convicting the accused persons under Section 324, I.P.C. the learned trial Judge has not discussed which of the accused persons caused hurt to whom. "Another serious material irregularity in framing the charge under S. 302 of the Indian Penal Code simpliciter against the accused Laisal Haque has been shown by Mr. Roy. It appears from the heads of the charges that this Laisal Haque was charged along with other accused persons under S. 302/149 of the Indian Penal Code stating that in furtherance of the common object of killing Golam Rabbani and injure others, all the rioters committed the murder of Golam Rabbani. If such a charge is framed against all the accused persons including Laisal Haque then it does not stand to reason why again this Laisal Haque has been charged under S. 302 simpliciter without making that charge as an alternative charge. Both Mr. Roy And Mr. Dutta (learned counsel appearing for the respondents accused who preferred appeals in the High Court) have submitted that because of the aforesaid irregular charges and rolled up charges the respective accused persons have been seriously prejudiced at the trial and the same has caused the failure of justice. The learned Advocate appearing for the State also shares the same view." The learned Judges then concluded: "On due consideration of the charges and the materials on record, we also agree to the view as taken by the teamed Advocates for the appellants and shared by the learned Advocate for the State. Further, the conviction and sentence under S. 324 or u/S. 323, I.P.C. simpliciter without framing the charge does not appear to be legal, and have caused the failure of justice." The learned Judges accordingly held that the case required a retrial against the accused respondents alone as against 16 out of 42 persons arraigned by both the learned additional Sessions Judge on reframing of charges. This was done without disturbing the order of acquittal recorded by the learned Additional Sessions Judge and 26 other accused. The learned Judges were pleased to add that no observation made by them in the impugned order of retrial shall be treated as an expression of opinion on the merits of the case.
(3.) It would be convenient at this stage to set out the charges framed by the learned Additional Sessions Judge which were in these terms: "First - That you all on or about the 5th September, 1980 at Najarnagar alias Sankarpore Ferryghat And P. S. Haroa were members of an unlawful assembly and did in prosecution of the common object of which assembly viz. to murder Golam, Rabbani and injure others, commit the offence of rioting and at that time were armed with deadly weapons such as bombs, pipeguns, iron rods, brickbats etc. and thereby committed an offence punishable "under S. 148 of the Indian Penal Code and within the cognizance of the Court of Sessions. Secondly - That you all on the same date and place were members of an unlawful assembly and did in prosecution of the common object of such assembly viz. to murder Golam Rabbani and injure others, some of you did commit murder by intentionally causing the death of the said Golam Rabbani by gun shot injury, which offence you know likely to be committed in prosecution of the common object and thereby committed an offence punishable under S. 302/149, I.P.C. and within the cognizance of the Court of Sessions. Thirdly - That you all on the same date and place were members of an unlawful assembly and did in prosecution of the common object of such assembly viz. to murder Golam Rabbani and injure others some of you voluntarily caused hurt to Mokbul Molla, Md. Akbar Ali Molla, Abu Molla, Yasin Molla, Abdul Waheb Ahed Bux Molla, Daulat Ali Molla, had Molla and ors. by gun, iron rod, bombs, lathi etc. which used as weapons of offence were likely to cause death which offence you knew likely to be committed in prosecution of the common object and thereby committed an offence punishable under S. 324/149, I.P.C. and within the cognizance of the Court of Sessions." The learned Sessions Judge also framed a separate charge against the respondent Laisal Haque for the substantive offence of culpable homicide amounting to murder punishable under S. 302 of the Indian Penal Code, which is in the following terms: "That you on or about the 5th September, 1980 at Najarnagar alias Sankarpore Ferryghat under Police Station Haroa did commit murder by intentionally causing the death of Golam Rabbani and thereby committed an offence punishable under S. 302 of the Indian Penal Code and within the cognizance of the Court of Sessions. And I hereby direct that you be tried by the said Court on the said charges.";