N.K.KAPOOR,J - (1.) THIS is a revision petition for quashing of the charge- sheet, Annexure P-5, dated 17.9 1993.
(2.) BRIEFLY put, on the statement of Sher Jang S/o Chhutmal (deceased), a charge sheet was framed by Additional Sessions Judge, Gurgaon, on 18.9.1992 against all the 12 accused persons including the petitioners. A copy of the charge-sheet is Annexure P-2. This charge-sheet was amended vide order dated 17.9.1993 conclusively stating that all those persons were members of unlawful assembly. In pursuance of the order dated 17.9.1993, three separate cases against the petitioners for allegedly causing injuries to Jafia wife of deceased Chhutmal; second charge sheet against all the accused persons including the petitioners for allegedly causing death of Chhutmal and injuries to three others; and third charge-sheet against four accused persons, namely, Kayyum, Mehmood Shah, Muneer and Suraj Mal. The grievance of the petitioners is that the charge-sheet Annexure P-5 against all the accused persons including the petitioners needs to be set aside/quashed on the ground that even as per narration of the events given in the first information report, presence of these petitioners is missing with regard to incident of death of Chhutmal and thereafter causing injuries to three other persons. According to the petitioners, the first information report comprises three separate incidents. The first incident relates to the alleged offence committed by the petitioners and in the second and third incident there is no presence of the petitioners. Thus the charge framed against all the accused persons needs to be modified thereby excluding the petitioners. In support of his contention, the counsel relied upon the decision of the apex Court in cases reported as Century Spinning and Manufacturing Co. Ltd. v. The State of Maharashtra, AIR 1972 SC 545; Union of India v. Prafulla Kumar Samal and another, AIR 1979 SC 366; and Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962. Counsel for the respondents, on the other hand, tried to justify the charges framed against the petitioners and other co-accused as per charge- sheet Annexure P-5, dated 17.9.1993. According to the counsel, the whole incident as given in the first information report forms a part of the "same transaction." The petitioners and other co-accused formed an unlawful assembly and in furtherance of their common object caused injuries to Smt. Jafia wife of the deceased, caused death of Chhutmal and injuries to Farida, daughter of the deceased. Even otherwise, the charge-sheet was framed against the petitioners way back on 18.9.1992, whereas the present petition has been filled in the year 1994. Support was also sought from the decision of the apex Court in case reported as Jai Narain Mishra and others v. The State of Bihar, 1972 Crl. L.J. 469 and The State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and another, AIR 1963 SC 1850.
(3.) I have considered the submissions made by the learned counsel for the parties and perused the decisions of the apex Court referred to by them. The case was registered as per statement of Sher Jang son of Chhutmal. As per narration given in the first information report, there was some dispute with regard to digging of foundation and on account of this grudge the accused persons formed an unlawful assembly and in furtherance of the common object gave injuries to Smt Jafia and thereafter killed Chhutmal and injured three others. According to the counsel for the petitioners, at the time of framing of charge, it is incumbent upon the Court to apply judicial mind for considering whether or not there is a ground for presuming the commission of offence by the accused. Framing of charges substantially affects the person's liberty. It is thus incumbent upon the Court to consider the whole question judicially. The Court is not expected to act in a mechanical manner and has, in fact, to shift the material placed before it and thereafter frame the charge/charges. There is no quarrel to this proposition of law. It is, indeed, the duty of the Court to sift the evidence and frame the charge. Facts of each case have to be kept in view in the light of the guidelines given by the apex Court in various judicial pronouncements. Facts as given in the first information report brings out that the accused persons had some common object to achieve which unfortunately led to causing of injuries to Smt. Jafia, Farida and death of Chhutmal. How and in what manner all these accused formed unlawful assembly and acted too in furtherance of their common object is a matter of evidence which is yet to be adduced. As per accusation levelled, it given an impression that the accused acted in furtherance of their common object, so non-presence of some of them on one occasion is wholly immaterial at this stage. The term 'same transaction' has not been defined anywhere in the Code. Whether a transaction can be regarded as the same would necessarily depend upon the particulars of each case. The observations of the apex Court in Cheemalapati Ganeswara Rao's case (supra) are indeed pertinent in this regard which are reproduced hereunder :- "...What is meant by "same transaction" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left underlined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of the elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction......" ;