1995 Supreme(SC) 390

SUPREME COURT OF INDIA
Dr. A.S. ANAND AND M.K. MUKHERJEE, JJ.
Ranbir Yadav, Appellant
Versus
State of Bihar, Respondent.
Criminal Appeal No. 34 of 1992 (with Cri. A. Nos. 35 and 36 of 1992 and Cri. M. P. Nos. 2423; 2424-25 of 1994)
Decided on 21-3-1995.

Headnote:(i) Constitution of India 1950- Art. 227 - Transfer of case from one Court to another by an administrative order - Challenged - Trial of a large number of persons - All accused could not be accommodated in Court room - Some of accused had to remain outside - Even clerks of lawyers were not being allowed to enter Court room to carry briefs - High Court exercised its plenary administrative power to transfer case to 5thCourt which had a bigger and better arrangement to accommodate accused persons, lawyers and others connected with trial-5th Court was competent to conduct Sessions trial- Order of transfer conferring jurisdiction on that Court and trial that followed cannot be said to be bad in law.

       Held: So long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceeding we do not find any reason to hold that administrative powers must yield place to judicial powers simply because in a given circumstance they co-exist. On the contrary, the present case illustrates how exercise of administrative powers were more expedient, effective and efficacious. If the High Court had intended to exercise its judicial powers of transfer invoking Section 407 of the Code it would have necessitated compliance with all the procedural formalities thereof, besides providing adequate opportunities to the parties of a proper hearing which, resultantly, would have not only delayed the trial but further incarceration of some of the accused. It is obvious, therefore, that by invoking its power of superintendence, instead of judicial powers, the High Court not only redressed the grievances of the accused and other connected with the trial but did it with utmost dispatch. (Para 10)

       (ii) Criminal Procedure Code, 1973 - Section 326 - Transfer of case from one Court to another - Judicial discretion to act on evidence recorded by predecessor Court - New Court can only resummon a witness who has already been examined for further examination Magistrate or Judge can exercise his judicial discretion only for further examination of a witness already examined and not for fresh examination of witnesses for a flesh trial.

       Held: From a comparative reading of sub-section (1) of Section 350 as it stood prior to its amendment in 1955 and as it stands since then with the change in its numeral and inclusion of word Judge therein we find that the discretion earlier given to the Presiding Officer of the Court to act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by him still remains. But so far fast the other option is concerned, while earlier he could resummon the witnesses and recommence the inquiry or trial - which necessarily meant a de novo trial - he can now only resummon a witness who has already been examined for further examination and discharge him after such further examination, cross-examination and re-examination, if any. It is evident therefore that now the Magistrate or Judge can exercise his judicial discretion only for further examination of a witness already examined and not for fresh examination of witnesses for a fresh trial. Obviously, keeping in view the inevitable frequent changes in the office of the Magistrate and Judge and in order to provide a speedy trial the legislature has taken away the well established right of the accused to claim a de novo trial and that of the Court to so direct by express words of the amending statute of 1955(Para 14)

       Further Held, that the primary reasons, which weighed with it for framing charges afresh and directing the prosecution to furnish the list of witnesses to be examined on its behalf were, that three accused had surrendered after charges had been framed and four witnesses for the prosecution had been examined-in-chief and three of them discharged after cross-examination and that the accused persons had been prejudiced in their defence as, instead of a lawyer of their choice a lawyer from the defence panel had appeared on their behalf on the first day of the trial. Therefore as against the present appellants and the other accused who were being tried with them the question of framing charges afresh by the 5thCourt did not and could not arise; and, in fact, as already noticed, only additional charges were framed against them. The direction of the 5thCourt regarding framing of charges afresh has therefore to be read and construed with reference to those three who surrendered later. (Para 15)

       Consequently Held: So far as those three accused are concerned, admittedly they were not there when the trial commenced in the 10th Court and, therefore, the 5thCourt was not only legally bound to frame charges against them, but also to record the evidence of the four witnesses already examined afresh if the prosecution intended to use the same against them for, save in exceptional cases as provided in Section 299 and other sections of the Code, all evidence has to be taken in the presence of the accused, or when personal presence is dispensed with, in the presence of his lawyer in view of Section 273 of the Code. Those three accused therefore might have legitimately and successfully assailed the reception and, for that matter, reliance upon the evidence of those four witnesses against them. However, the three appellants before us cannot be allowed to raise any similar grievance for those witnesses were examined in their presence and cross-examined at length by the lawyers of their choice for days together. Then again, as already noticed, after the additional charges were framed against them and others under sections 364/149 and 201/149 IPC the prosecution submitted a prayer that they were willing to produce those four witnesses who had earlier been examined in the previous Court for further cross-examination but then the appellants did not avail of the opportunity and insisted upon their fresh examination which was allowed by the trial Court but, as noticed earlier set aside by the High Court. Even if we accept the contention of Mr. Jethmalani that the order of the 5th Court directing fresh examination of the prosecution witnesses was an interlocutory order and therefore the High Court could not have set aside the same in exercise of its revisional jurisdiction in view of the embargo or Section 397 (2) of the Code and we should take no cognizance of the order of the High Court in this regard, it would only mean that the four witnesses earlier examined by the prosecution were not examined afresh. Even then, as regards the three appellants with whom only we are concerned in this appeal, it does not alter the situation for - at the risk of repetition we reiterate - they were examined in presence of the appellants and they were cross-examined extensively and exhaustively and therefore no prejudice can be said to have been caused to them. (Para 16)

       (iii) Constitution of India - Art.136 Indian Penal Code, 1860 - Sections l20-B, 148, 302/149, 436/145, 380 and 201/149 - Convictions under - Appeal under Art. 136 - Concurrent findings of fact - Evidence of eye-witnesses conclusively prove that all three appellants shared common object of unlawful assembly to commit offences of loot, arson and murder and causing disappearance of evidence of murder In furtherance of those common objects some members of that unlawful assembly committed those offences - Appellants rightly held guilty u/s. 149- Impugned convictions and sentences recorded against appellants must be upheld. (Laljis Case: A.I.R.1989 S.C. 754: Relied on).

       Held: Sitting in the jurisdiction under Article 136 of the Constitution of India we will not be justified in re-opening the whole case and disturbing concurrent findings of fact recorded on a pure appreciation of evidence unless we hold that those findings have been recorded in utter disregard of mandatory provisions of law resulting in serious prejudice and substantial injustice to the accused. The other area justifying our interference would be where on the proved facts wrong inference of law has been drawn or the conclusions on facts are manifestly perverse and based on no evidence. (Para 23)

       Further Held: The Court in Laljis case considered the facts of the case before it and observed that after having held that the appellant formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence, it was not open to the High Court to acquit some of the members on the ground that they did not perform any violent act or that there was no corroboration of their participation. (Para 34)

       Consequently Held: In view of the above interpretation given to Section 149 IPC we need not delve into or decide the contention raised by Mr. Jethmalani that the evidence regarding the specific overt acts ascribed to each of the three appellants herein is not reliable, for the evidence of the host of eye-witnesses - which both the Courts below considered and accepted - conclusively prove that all the three appellants shared the common object of the unlawful assembly to commit the offences of loot, arson and murder and causing the disappearance of the evidence of murder and that in furtherance of those common objects some members of that unlawful assembly committed those offences for which the appellants are also liable to be convicted under Section 149 IPC. Even if we leave aside the evidence of Suresh Singh (P.W. 46) who testified about the overt acts committed by all the three appellants, of P.C. P.W. 2 who spoke abouts the overt acts of appellants Pandav Yadav and Sukhdeo Yadav and of P.C. P.W. 1 and P.W. 19 who deposed about the overs act of Sukadeo Yadav there are the testimonies of the other eye- witnesses, to whom reference has already been made, and found to be trustworthy, who identified the three appellants, besides others, as having been members of the unlawful assembly. Having sifted their evidence and considered the same in the backdrop of the events preceding the incident that took place in the afternoon of 11.11.1985 we find that the following conclusions are inevitable: (i) a mob of 500/ 600 people, most of whom belonged to Yadav community and were residents of different villages came to and attacked the neighbouring village Laxmipur Taufin Bind Toli to exterminate the Bind community; (ii) the three appellants who belong to Yadav community and are residents of three separate adjoining villages came on horse back armed with fire arms, and led the mob along with some others; and (iii) the appellants were also amongst the rioters who chased the villagers and committed the murders at Tisrasia Dhab and the bank of the River. (Para 35)