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How Can Police File Charge-sheet Only Under S. 34 & 120-B IPC: Allahabad High Court Calls For Explanation From IO

Sparsh Upadhyay
4 Nov 2020 9:14 AM GMT
How Can Police File Charge-sheet Only Under S. 34 & 120-B IPC: Allahabad High Court Calls For Explanation From IO
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The Allahabad High Court on Monday (02nd November) called upon the investigating officer and the circle officer attached with Police Station Akhand Nagar, District Sultanpur to explain how the charge-sheet under Sections 34 and 120-B IPC was filed.The Bench of Justice Dinesh Kumar Singh ordered both the officers to remain present before the Court on the next date of listing to furnish...

The Allahabad High Court on Monday (02nd November) called upon the investigating officer and the circle officer attached with Police Station Akhand Nagar, District Sultanpur to explain how the charge-sheet under Sections 34 and 120-B IPC was filed.

The Bench of Justice Dinesh Kumar Singh ordered both the officers to remain present before the Court on the next date of listing to furnish their explanation in writing on personal affidavits.

Significantly, yhe Court was perusing the charge-sheet which was filed against the accused-applicant under Sections 34 and 120-B IPC in FIR No.0382 of 2019 relating to Police Station Akhand Nagar, District Sultanpur, which was initially lodged under Section 307 IPC, but after death of the victim, Section 302 IPC had been added.

The Court opined,

"Neither the offences under Section 34 IPC nor Section 120-B IPC are the independent offences. These are the offences to be read in the substantive offences."

The Court further said,

"It is very strange that the charge-sheet has been filed only under Sections 34 and 120-B IPC. How the charge-sheet under Sections 34 and 120-B IPC can be filed without adding the substantive offences"

In view of the above, the Court said that it was required that the investigating officer, who has investigated the offence, and the circle officer, who would have perused the same, shall remain present before this Court on the next date of listing.

They have been ordered to furnish their explanation in writing on personal affidavits as to how the charge-sheet under Sections 34 and 120-B IPC would go to stand in the scrutiny without the substantive offences being mentioned therein.

The matter has been listed for further hearing on 17th November, 2020

EDITOR'S COMMENTS

It may be noted that the Apex Court's ruling in Gurudatta Mal Vs. State of U.P. AIR 1965 SC 257, makes it amply clear that Section 34 of the Indian Penal Code does not create a distinct offence; it only lays down the principle of joint criminal liability.

The Apex Court in Gurudatta Mal (supra) had ruled that,

"The necessary conditions for the application of Section 34 of the Code are common intention to commit an offence and participation by all the accused in doing an act or acts in furtherance of that common intention. If these two ingredients are established, all the accused would be liable for the said offence."

In other words, Section 34 1PC contemplates the doing of an act by several persons in furtherance of a common intention. The constructive liability under this provision would arise if the following two conditions are fulfilled:-

(1) There must be common intention to commit a criminal act; and
(2) There must be participation of all the persons in doing of such act in furtherance of that intention.

If these two ingredients are established, all the accused would be liable for the offence which has been committed

12B Not Substantive Offence?

As far as the charge under S. 120-B IPC concerned, it may be noted that in the Indian Penal Code, as originally enacted, Criminal Conspiracy was not an offence in itself.

Criminal Conspiracy was made a substantive offence in the year 1913 by way of introducing Chapter V-A in the Indian Penal Code. The idea was to prevent the commission of crimes by, so to, speak, nipping them in the bud.

While Section 120-A defines "Criminal Conspiracy", Section 120-B provides for the punishment for the offence of Criminal Conspiracy.

Criminal conspiracy, as defined under S.120-A IPC, consists of an agreement between two or more persons to do, or cause to be done an illegal act or an act which is not illegal, by illegal means (see Noor Mohammad Mohd. Yusuf Momin vs State Of Maharashtra 1971 AIR 885).

Notably, the Offence under S. 120-B differs from other offences in the sense that under this section, mere agreement is made an offence, even if no step is taken to carry out that agreement.


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