Nanak Chand vs The State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 132 of 1954

Decision Date: 25 January, 1955

Coram: Syed Jaffer Imam, Natwarlal H. Bhagwati

In the case titled Nanak Chand versus the State of Punjab, the Supreme Court of India rendered its decision on the 25th day of January 1955. The judgment was authored by Justice Syed Jaffer Imam, who presided over a bench that also included Justice Natwarlal H. Bhagwati together with Justices Das and Sudhi Ranjan. The petitioner before the Court was Nanak Chand and the respondent was the State of Punjab. The decision is reported in the 1955 volume of the All India Reporter at page 274 and also appears in the Supreme Court Reports (First Series) at citation 1955 SCR (1) 1201. The dispute centered on the interpretation of certain provisions of the Indian Penal Code, namely section 34, which the Court described as merely explanatory and not constituting a separate offence, and section 149, which required a distinct analysis. In addition, the Court examined the Code of Criminal Procedure, particularly section 233, which mandates that a charge under section 302 must be specifically framed when read in conjunction with section 149 of the Indian Penal Code. The Court therefore considered whether a conviction under section 302 could be sustained in the absence of a specific charge as required by the procedural provision, and evaluated the legality of such a conviction under the statutes mentioned.

The Court explained that section 34 of the Indian Penal Code does not create an independent offence; rather, it operates as an explanatory provision that applies when several persons act with a common intention to commit a crime. Under this section, each participant is treated as if the criminal act had been performed by him alone, provided that a shared intention existed and the act was executed in furtherance of that intention. The Court emphasized a clear distinction between sections 34 and 149 of the Penal Code, cautioning that the two sections should not be conflated. While section 34 relies on a common intention to commit the substantive offence, section 149 deals with offences committed by a member of an unlawful assembly, imposing liability on all members even when there is no common intention to commit the specific act, as long as the conditions of the section are satisfied. Consequently, if the act performed by a member is in prosecution of the common object of the assembly, or if the other members knew that such an act was likely to be committed in pursuit of that object, each member of the unlawful assembly becomes guilty of the offence, despite the absence of a shared intention or direct participation. The Court further noted that the concepts of object and intention are distinct; the object may be common to all members, whereas their individual intentions may vary, aligning only in the respect of advancing the common object. This differentiation underlies the separate applications of sections 34 and 149 within the broader framework of criminal liability.

In the present discussion the Court explained that the requirement of active participation, which is the essential element of section 34 of the Indian Penal Code, is substituted in section 149 by the simple fact of being a member of the unlawful assembly at the time the offence is committed. Consequently, a charge that targets a substantive offence such as murder under section 302 or grievous hurt under section 325 of the Indian Penal Code is distinct from a charge that invokes section 149 together with either of those substantive sections. The law therefore mandates that a person charged with an offence read with section 149 cannot be convicted of the substantive offence unless a separate and specific charge for that substantive offence is framed, as required by section 233 of the Code of Criminal Procedure. The Court held that section 236 of the Code of Criminal Procedure was not applicable to the facts of the present case because its provisions are intended for situations where the proven facts are clear but there remains uncertainty as to which of several possible offences has been committed, permitting the framing of multiple or alternative charges. Here, however, the facts were undisputed; the evidence, if it established that the appellant caused the deceased’s injuries with a weapon, left no doubt that the offence of murder had been committed. The Court observed that no error, omission or irregularity fell within the meaning of section 537 of the Code of Criminal Procedure because a charge under section 302 of the Indian Penal Code had never been framed. The defect in the proceedings was an illegality rather than a curable irregularity under sections 535 and 537. Even assuming, for argument’s sake, that the defect were merely a curable irregularity, the Court found it could not be remedied because the appellant was misled in his defence by the absence of a charge under section 302. By framing a charge under section 302 read with section 149, the Court indicated that it was not charging the appellant with the offence of murder; therefore, convicting and sentencing him under section 302 would amount to convicting him of an offence that had not been formally charged. As a result, the appellant was not required to meet a charge of murder in his defence and, understandably, might have deemed it unnecessary to address that portion of the prosecution’s case. The Court referred to the authorities Barendra Kumar Ghosh v. Emperor (1925 ILR 52 Cal 197), Queen v. Sabid Ali and others (1873 20 WR (Cr) 5), and Panchu Das v. Emperor (1907 ILR …).

The Court referred to a long list of earlier authorities, including Beazuddi and Others v King-Emperor (1901 6 C.W.N. 98), Emperor v Madan Mandal and Others (1914 I.L.R. 41 Cal. 662), Theethumalai Gounder and Others v King-Emperor (1924 I.L.R. 47 Mad. 746), Queen-Empress v Bisheshar and Others (1887 I.L.R. 9 All. 645), Taikkottathil Kunheen (1923 18 L.W. 946), Bamasray Ahir v King-Emperor (1926 I.L.R. 7 Patna 484), Sheo Ram and Others v Emperor (A.I.R. 1948 All. 162) and Karnail Singh and another v State of Punjab (1954 S.C.R. 904). The judgment concerned Criminal Appeal No 132 of 1954, which had been granted special leave by the Supreme Court on 3 September 1954. The appeal arose from the judgment and order dated 15 June 1954 of the Punjab High Court at Simla in Criminal Appeal No 287 of 1954, which in turn stemmed from the judgment and order dated 14 April 1954 of the Additional Sessions Judge in Session Case No 4 of 1954. Counsel for the appellant, assisted by an additional lawyer, represented the petitioner, while counsel for the respondent appeared for the State. The judgment was delivered on 25 January 1955 by Justice Imam J. This appeal, brought by Nanak Chand under special leave, challenged the Punjab High Court’s decision. The High Court had affirmed the conviction of the appellant under section 302 of the Indian Penal Code and upheld the death sentence that had been imposed by the Additional Sessions Judge of Jullundur. The prosecution’s case alleged that Sadhu Ram was killed on 5 November 1953 at approximately 6:45 p.m. in the shop of Vas Dev P. W. 2. The appellant, together with several others, was said to have assaulted the deceased, the appellant being armed with a takwa. The post-mortem examination reported numerous injuries on Sadhu Ram, and the medical officer identified injuries numbered 1, 3 and 4 as caused by a heavy, sharp-edged weapon consistent with a takwa. The prosecution denied that any other person had used a takwa in the assault. The medical evidence concluded that each of injuries 1, 3 and 4, as well as the combination of those injuries, were sufficient in the ordinary course of nature to cause death. In the Sessions Court, the appellant and co-accused were charged under section 148 and section 302 read with section 149 of the Indian Penal Code. The Additional Sessions Judge held that the charge of rioting under section 148 was not proved and consequently convicted the appellant and three others under section 302 read with section 34, while acquitting the remaining three accused. The three convicted persons appealed to the High Court, which thereafter convicted only the appellant under section 302, confirmed the death sentence, and altered the conviction of the other accused from section 302/34 to section 323 of the Indian Penal Code. The High Court also held that section 34 of the Indian Penal Code did not apply to the appellant. The appeal raised both questions of law and questions of fact, although the Court indicated that it would not need to address the factual issues if the legal arguments were accepted.

The Court observed that the conviction of the other accused had been altered from sections 302 and 34 of the Indian Penal Code to section 323 of the same Code, and it held that the provisions of section 34 of the Indian Penal Code did not apply to those respondents. On behalf of the appellant, counsel raised both questions of law and questions of fact. The Court indicated that it would be unnecessary to examine the factual issues if the legal argument were accepted. The principal question of law, therefore, was whether the appellant could lawfully be found guilty of murder and sentenced under section 302 of the Indian Penal Code when no charge under that provision had been framed against him. Counsel for the appellant submitted that, because the appellant had been acquitted of the charge of rioting and of the offence alleged under the combination of sections 302 and 149 of the Indian Penal Code, it was impossible to convict him of the substantive offence of murder punishable under section 302 without a specific charge being framed under that section. The submission relied upon the provisions of the Code of Criminal Procedure relating to the framing of charges, the observations of the Privy Council in Barendra Kumar Ghosh v Emperor [1925] I.L.R. 52 Cal 197, and certain decisions of the Calcutta High Court, to which reference would be made later. It was further urged that for each distinct offence with which a person is charged, a separate charge must be framed and each such charge must be tried separately, except in the circumstances enumerated in sections 234, 235, 236, 237 and 239 of the Code of Criminal Procedure. Counsel highlighted that section 149 of the Indian Penal Code creates a specific offence and that this offence is distinct from the offence of murder punishable under section 302 of the same Code. The Court noted that the provisions of sections 236, 237 and 238 of the Code of Criminal Procedure did not apply to the facts and circumstances of the present case. On the other side, the prosecution contended that section 149 did not create any offence at all, and therefore no separate charge was required under section 233 of the Code of Criminal Procedure. The prosecution further argued that, in any event, the provisions of sections 236 and 237 of the Code of Criminal Procedure did apply, and consequently the appellant could be convicted and sentenced under section 302 of the Indian Penal Code even though no charge for the substantive offence of murder had been framed. The Court therefore found it necessary to examine the provisions of section 149 of the Indian Penal Code to determine whether that section creates a distinct offence. Section 149 is situated in Chapter VIII of the Indian Penal Code, which deals with offences against public tranquillity, and its wording reads: “If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to…”

Section 149 of the Indian Penal Code reads: “If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” The Court explained that this provision postulates that when a member of an unlawful assembly carries out an offence in furtherance of the common object, or when the members knew that such an offence was likely to be committed, each person who was a member of that assembly at the time of the offence becomes guilty of the offence. Under this rule a person is held liable for the act of another member solely because he was present in the assembly and shared its common object, even though he had no personal intention to commit the act and performed no overt act beyond his presence. The Court noted that without the mechanism created by Section 149 a member of an unlawful assembly could not be held responsible for an offence committed by a different member of the same assembly. Consequently, the Court held that if the accused are acquitted of the charge of rioting and the allegation of being members of an unlawful assembly fails, no one among them could be convicted of an offence that he did not personally commit. The Court further observed that Section 150 of the Indian Penal Code also creates a specific offence. Under Section 150 a person may be deemed guilty of being a member of an unlawful assembly and of an offence that may be committed by a member of such an assembly, even though he is not himself a member, provided the circumstances described in the section are satisfied. The Court emphasised that Sections 149 and 150 are not the only provisions in the Code that create specific offences.

The Court proceeded to discuss other sections that similarly create distinct offences. Section 471 of the Indian Penal Code, for example, makes it an offence to fraudulently or dishonestly use a document as genuine when the person knows or has reason to believe that the document is forged, and it provides that the offender shall be punished in the same manner as if he had forged the document himself. The Court also observed that abetment is a separate offence under the Code and that the punishment for abetment may be the same as the punishment for the principal offence. In Chapter XI of the Code, offences relating to false evidence and the administration of public justice are enumerated. Section 193 prescribes punishment for giving false evidence at any stage of a judicial proceeding or for fabricating false evidence for use in any stage of such a proceeding. Section 195 creates an offence, and the Court noted that a person convicted under this provision may, in certain circumstances, be punished in the same manner as a person convicted of the principal offence. The Court further mentioned that Sections 196 and 197 of the Indian Penal Code also create offences, and that a person convicted under any of these sections would be liable to be punished as if he had given false evidence.

Section 200 of the Indian Penal Code also creates offences, and any person convicted under that provision is punished in the same manner as if he had given false evidence. The prosecution, however, contended that section 149 merely imposes constructive guilt in a way that is comparable to section 34 of the Indian Penal Code. Section 34 states: “When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” This provision is explanatory in nature. It requires that several persons be driven by a common intention, and that, in furtherance of that common intention, a criminal act is performed by them; each participant is then liable as though the act had been committed by him individually. Section 34 does not itself create a distinct offence. Lord Sumner, speaking in Barendra Kumar Ghosh v. Emperor (1), explained that “a criminal act” means “unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone, that is, in a criminal offence” (1) [1925] I.L.R. 52 Cal. 197. The Court emphasized a clear distinction between sections 34 and 149 of the Indian Penal Code and warned that the two provisions must not be conflated. The essential element of section 34 is the presence of a common intention to commit a crime; when that common intention exists, several individuals may perform various acts that together constitute the offence, and each individual is treated as if he had performed all the acts himself. In contrast, section 149 does not require a common intention. An offence committed by one member of an unlawful assembly can give rise to liability for the other members even where no common intention existed, provided the statutory conditions of section 149 are satisfied. Accordingly, if the offence committed by a particular member is carried out in prosecution of the common object of the unlawful assembly, or if the members knew that such an offence was likely to be committed in furtherance of that common object, every member of the assembly is guilty of that offence, despite the absence of any shared intention or direct participation by the other members in the actual act. In Barendra Kumar Ghosh v. Emperor (1), Lord Sumner examined the argument that if section 34 were given the meaning adopted by the Calcutta High Court, then sections 114 and 149 would become redundant. In the

Lord Sumner held that section 149 of the Indian Penal Code was not redundant, because it created a distinct offence. He explained that the provision required an assembly of five or more persons, each sharing a common object as defined in section 141, and then the commission of an offence by any member of that assembly in furtherance of that object. Lord Sumner referred to the case of Queen v. Sabid Ali and observed that a difference existed between the concepts of object and intention: although the object of the unlawful assembly might be common, the individual intentions of its members could differ, or they might be similar only in the sense that all were unlawful. He noted that the element of participation in the act, which was the essential feature of section 34, was replaced in section 149 by the fact of being a member of the assembly at the time the offence was committed. Although some argued that Lord Sumner’s observations were merely obiter dicta, the Court recognized that the remarks of a judge of such stature must be given considerable weight, particularly when they are consistent with the language of the Indian Penal Code. It was further observed that Lord Sumner’s comments arose directly from the arguments presented before the Privy Council, which was reviewing the provisions of sections 34, 114 and 149 as a whole. In support of the appellant’s position, several decisions of the Calcutta High Court were cited, namely Panchu Das v. Emperor, Reazuddi and Others v. King-Emperor and Emperor v. Madan Mandal and Others. These authorities were relied upon to argue that it would be unlawful to convict an accused of the substantive offence under a section without a charge being framed, where the accused had been acquitted of the offence under that same section read with section 149. Conversely, the prosecution relied upon a Full Bench decision of the Madras High Court in Theetkumalai Gounder and Others v. King-Emperor and the case Queen Empress v. Bisheshar and Others. The Madras decision was rendered in April 1924, and the counsel also referred to a decision of the Allahabad High Court. The Privy Council judgment in Barendra Kumar Ghosh’s case was delivered in October 1924, after which the Madras High Court could not have considered that ruling. Consequently, it was impossible to determine what view the Madras Court might have adopted had the Privy Council’s decision been available. The view expressed by the Calcutta High Court was therefore noted and taken into account.

In this case, the Court noted that a decision of the Madras High Court in Taikkottathil Kunheen(1) held that section 149 of the Indian Penal Code constitutes a distinct offence from section 325 of the Indian Penal Code. Because of that determination, the matter was referred to a Full Bench for further consideration. The Full Bench was asked to consider two specific questions: first, when a charge omits section 149 of the Indian Penal Code but the conviction is based on the provisions of that section, whether such a conviction is necessarily invalid or whether its validity depends on whether the accused has been materially prejudiced by the omission; and second, when a charge is framed under sections 326 and 149 of the Indian Penal Code, whether a conviction under section 326 is necessarily invalid or whether its validity also depends on whether the accused has suffered material prejudice because of the way the charge was framed.

The Full Bench adopted the view expressed by Sir John Edge in the Allahabad case, stating that section 149 does not create an offence in itself but, like section 34, merely declares a principle of common law. Its purpose, the Court explained, is to make clear that an accused who falls within the ambit of section 149 cannot plead as a defence that it was not his hand which inflicted the grievous hurt. Spencer, J. observed that a person could not be tried and sentenced under section 149 alone, because the section provides no punishment. Consequently, the omission of section 149 from a charge does not create an illegality under section 233 of the Code of Criminal Procedure, which requires a separate charge for every distinct offence of which a person is accused.

The Court did not accept the general statement made in Reazuddi’s case(2) that it is settled law that a person charged by implication under section 149 cannot be convicted of the substantive offence. It held that a charge for a substantive offence such as section 302 or section 325, read with section 149, is a distinct and separate offence from the offence created solely by section 149. It was further argued, with reference to section 40 of the Indian Penal Code, that section 149 cannot be regarded as creating an offence because it does not itself provide a punishment. The Court clarified that while section 149 creates an offence, the appropriate punishment must depend on the substantive offence for which the offender is found guilty under section 149, and therefore the relevant punishment provision must be read in conjunction with it. The Court emphasized that it is neither desirable nor feasible to prescribe a single uniform punishment for all cases that may fall within section 149, and that all members of an unlawful assembly are guilty of the offence committed by any one of them, subject to the punishment prescribed for that particular offence.

In the view expressed, when a group of persons pursued a common unlawful object, the law subjected every member of that group to the punishment that the statute prescribed for the offence committed, together with the corresponding sentence. The Court noted that counsel for both sides had relied upon the decision of the Patna High Court in Ramasray Ahir v. King-Emperor (1) and upon the decision of the Allahabad High Court in Sheo Ram and Others v. Emperor (1). In the Patna case, the judgment of the Privy Council in the Barendra Kumar Ghosh case was not taken into consideration; instead, the Patna Court followed the reasoning of the Full Bench of the Madras High Court and the opinion of Sir John Edge. In the Allahabad case, the Court observed that the judges expressly declined to answer the question whether a person charged with an offence read with section 149 of the Indian Penal Code, or with an offence read with section 34 of the same Code, could be convicted only of the substantive offence.

After reviewing all the authorities cited by the appellant and the prosecution, the Court held that the approach adopted by the Calcutta High Court was the correct one. It reiterated that a person charged with an offence read with section 149 cannot be convicted of the substantive offence unless a separate charge is specifically framed as required by section 233 of the Code of Criminal Procedure. The Court rejected the contention that, relying on its own earlier decision in Karnail Singh and another v. State of Punjab (1), a conviction under section 302 read with section 149 could be transformed into a conviction under section 302/34, as the trial court had attempted to do. The Court found this argument unacceptable because the Calcutta High Court had clearly held that section 34 was not applicable to the facts, and had therefore acquitted the other accused on that ground, indicating that the trial court’s conviction of those accused under section 302/34 was erroneous. Moreover, the Court stressed that the High Court could not perform a function that the trial court itself was powerless to perform, namely, to convict under section 302 when no distinct charge under that section had been framed. The prosecution’s reliance on sections 236 and 237 of the Code of Criminal Procedure was also dismissed. The Court explained that section 237 is wholly dependent on the conditions laid down in section 236, and that the provisions of section 236 are applicable only where the facts are indisputable but there is uncertainty as to which of several possible offences has been committed, a situation that did not arise in the present case.

In the circumstances where the proved facts are such that any number of charges may be framed and tried, or alternative charges may be framed, the provisions of section 236 of the Code of Criminal Procedure permit the framing of multiple charges. Where a charge is omitted, section 237 allows a conviction to be based on the evidence even though no specific charge was framed. In the present case the facts were undisputed and the evidence established that the appellant caused the injuries to the deceased with a weapon, thereby proving that the offence of murder had been committed. Consequently, there was no scope for invoking section 236, because the offence was clear from the evidence.

The prosecution submitted that a finding or sentence should not be deemed invalid merely because no charge had been framed, and relied on section 535 of the Code of Criminal Procedure. It also cited section 537. Section 535 authorises a court of appeal or revision to set aside a finding or sentence if, in its opinion, the non-framing of a charge has resulted in a failure of justice. Section 537 similarly empowers a court of appeal or revision to set aside a finding or sentence if any error, omission or irregularity in the charge has actually caused a failure of justice. The explanatory note to that section indicates that the objection should have been raised at an earlier stage of the proceedings.

In the present case there was no error, omission or irregularity in the charge because no charge under section 302 of the Indian Penal Code was ever framed. Section 232 of the Code of Criminal Procedure authorises an appellate court or a court of revision, if satisfied that a person convicted of an offence was misled in his defence either by the absence of a charge or by an error in the charge, to direct a fresh trial on a charge that it thinks appropriate. The Court held that the situation involved an illegality rather than a curable irregularity within the scope of sections 535 and 537. Even if the situation were treated as a merely curable irregularity, the Court was satisfied that it could not be cured because the appellant had been misled in his defence by the absence of a charge under section 302 of the Indian Penal Code. By framing a charge under section 302 read with section 149 of the Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with murder and that convicting and sentencing him for murder under section 302 would have been improper.

The Court observed that framing a charge under section 302 of the Indian Penal Code would have sought to convict the appellant of an offence for which he had not been formally charged. In defending himself the appellant therefore was never called upon to meet such a charge, and he may reasonably have concluded that concentrating on that portion of the prosecution case was unnecessary. Attention was drawn to the medical evidence relating to injury number one, where the examining doctor testified that the wounds were not very clean-cut. The doctor further pointed out that other incised injuries on the head were bone-deep, although the bone itself had not been fractured or driven out. The Court noted that injuries to the head inflicted by a blunt weapon can sometimes assume the appearance of incised wounds. Reference was made to Glasgow’s Medical Jurisprudence, ninth edition, page 241, which explains that under certain circumstances blunt-instrument wounds may simulate incised wounds. Such simulated wounds are usually found over bones that are thinly covered with tissue, for example in the regions of the head, forehead, eyebrow, cheek and lower jaw. The Court also recorded the testimony of Vas Dev, identified as PW-2, who admitted that Mitu took the takwa from the appellant after Sadhu Ram had been dragged out of the shop, but that no takwa blow was delivered outside the shop. Similarly, the eyewitness Prakash Chand, PW-4, affirmed that Mitu had taken the takwa from the appellant when they emerged from the shop. It was submitted that, had a specific charge for murder been framed against the appellant, he would have more closely interrogated the doctor about the incised-looking head injuries and would have challenged the prosecution witnesses. The Court found it difficult to hold that the appellant was not prejudiced by the failure to frame a charge under section 302 of the Indian Penal Code. Having regard to the legal view already expressed, the Court deemed it unnecessary to revisit the factual arguments. Consequently, the appeal was allowed, the appellant’s conviction and sentence were set aside, and the matter was remanded to the Sessions Court at Jullundur for a retrial after framing a charge under section 302 of the Indian Penal Code in accordance with law.