T.P.S. Chawla, J.
(1) It is odd that there is so little guidance in the cases as to the considerations which ought to weigh with a court when deciding what charges should be framed in a criminal case. May be, that is because the general run of cases poses no problem. Yet, there can be complexities as is borne out by this petition for revision, which has arisen in the following circumstances.
(2) The nine respondents are being jointly tried before the Additional Sessions Judge, Delhi, in respect of an incident which occurred on 30th April 1980. The case against them appears sufficiently from the first information recorded by the police. Jai Narain, who is the petitioner here, was the informant. A free translation of what he said is as under :
'Iam a resident of village Deendarpur and cultivate land. A civil litigation was going on between my father, Ami Lal, and Fazal. Mohammed in respect of some land. The land was about 30 or 35 bighas in area. The case was decided in favor of my father on 29th April 1980.
In front of the house of Raghunath and Kanwar Singh, there is some land belonging to the Gaon Sabha on which everyone throws their garbage. Today, when Sarvati, the wife of Chhotu Ram, who is my uncle's son, was throwing garbage there as usual, Zile Singh, Khushi Ram and Fazal Mohammed came there and using foul abuses they scolded her. They forbade her from throwing garbage there.
IN the meantime, on hearing the noise, my father and Chhotu Ram, the son of my uncle, came there and told Fazal Mohammed and the others not to use abusive, language. On hearing the loud voices, Raghunath, Mani Ram, Attar Singh, Reham Ali. Kanwar Singh and Rattan Singh also came there. At that time, Fazal Mohammed was holding a ballam (a short spear), Zile Singh a bhala (a large spear), Khushi Ram a jaili (a rake), and the others had lathis (staffs) in their hands. Then Fazal Mohammed attacked my father with the ballam, and my father fell down as he had been hit on the head and face. In order to save him, I and Chhotu Ram lay upon my father, who had fallen to, the ground. Zile then struck me with the bhala and I sustained injuries .on my head arid left leg. Raghunath, Mani Ram, Rattan Singh, Kanwar Singh and Attar Singh caught Chhotu Rain. He, too, has sustained injuries. Khushi. Ram struck me and my father with both sides of the jaili he was holding and caused injuries. In the course of this, Deen Dayal,. Subey Singh and Jage Ram came to our rescue with lathis, and saved us from their clutches.
MY father Ami Lal had become unconscious at the spot. Thereafter, all of us first came to the Najafgarh dispensary. There, my father succumbed to his injuries. All of us who were injured were then brought to Safdarjang Hospital in a vehicle belonging to the hospital.
I know Fazal Mohammed, Khushi Ram, Zile Singh, Reham Ali, Raghunath, Mani Ram, Ratt an Singh, Attar Singh and Kanwar Singh from before. (These are the nine respondents). They collected together and wounded me, my father Ami Lal, and Chhotu Ram with the bhala, ballam, jaili and lathis with ' the intention of murdering us. I am lodging this complaint against them. This incident occurred at about 9.30 a.m.'
IN the course of in,ves'iigation, the police recorded the statements of a number of persons. They more or less repeat what is contained in the first information.
(3) On 9th March 1981, the Additional Sessions Judge framed three joint charges against the respondents. In all of them it was alleged that the offence charged had been committed in furtherance of their common intention, and section 34 of the Indian Penal Code was recited. The first was a charge under section 304 Part I for 'culpable homicide not' amounting to murder by causing the death of Ami Lal'. .The second was under se Section 307 for attempting to murder Ghhota Ram. And. the third, was under sections 323 and 324 for having voluntarily caused' simple hurt to Jai Narain by means of a sharp edged and blunt weapons'. Before framing these charges, the matter was fully argued and the judge made a reasoned order.
(4) In that order, the judge declined to charge the respondents under section 302 of the Indian Penal Code with the murder of Ami Lal. He also declined to frame charges for rioting under sections 147 and 148 of that Code. And, he further refused to charge them under section 149, which makes members of an unlawful assembly vicariously liable for offences committed by each other, if the requirements of that section are fulfillled. On all these scores, Jai Narain is aggrieved and seeks revision of that order. Although the State has not itself applied for revision (I was told that its petition was delayed by administrativ.e procedures but was in the offing), the Additional Public Prosecutor unreservedly supported all the submissions made on behalf of Jai Narain.
(5) The judge refused to frame a charge under section 302 because, he said, 'there is no manner of doubt that the injuries to Ami Lal and other's as well as to some of the accused were caused as a result of a mutual fight and not out of a premeditated murderous assault. . For reaching this conclusion he relied on the sequence of events as narrated 'in the first information. He felt fortified in his view by the fact that the police itself and simultaneously launched a prosecution under section 307 of the Indian Penal Code against Jai Narain and Others for an attempt to murder one of the respondent's. In Support of his conclusion the judge cited Ram Swarup v. State of Haryana.
(6) With regard to sections 147, 148 and 149 of the Indian Penal Code, the judge held that, as 'three of the accused were already there at the place of occurrence' and 'the remaining accused had come there after hearing their noise', it could not be said 'that they had come there after forming an unlawful assembly with an object of murdering Ami Lal or attacking other persons', In other words, he seems to have concluded that there was no pre-conecert, and hence there could be no unlawful assembly. Substanally, this is is the Same, reason that he gave for not framing a charge under section 302 when he said that the 'injuries to Ami Lal and others' were' not the result of a 'pre-meditated murderous assault'.'
(7) It will be seen that, in his order, the judge has made certain important findings of fact, and they are the foundation of his reasoning. He has held thar there was a 'mutual fight' and no 'premeditation', nor 'pre-concert'. Without those findings his order Would have no legs on which to stand. The real question in this case is whether those findings could or ought to have been given at this stage of the proceeding.
(8) At the stage of framing a charge, the judge has no evidence before him. The only materials on which he can act are the statements recorded by the police and the documents produced by them. It is agreed on all hands, and settled by authority, that the judge must, at this stage, assume that the statements recorded by the police are true and the documents produced by them are genuine : see Sheobux Ram v. The Emperor, 9 C. W. N. 829(2) and In re Himloo Jaddu Gond, Air 1941 Nag 224. He must then ask himself what offence or offences, if any, would be constituted if those assumptions are fulfillled, and either discharge the accused or frame the appropriate charge or charges. Obviously, there is no other basis on which a judge could, at this stage, conceivably proceed. In framing the charges he must remember section 218(1) of the Criminal Procedure Code 1973, which requires that 'For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately'.
(9) But it may happen that, even making those assumptions, the offence or offences for which the accused should be charged may not be sure or clear. The Criminal Procedure Code shows awareness of that possibility and makes provision for such a case. Section 221(1) envisages a case of such a nature that it is doubtful which of several offences the facts which can be proved will constitute'. The solution it provides is that 'the accused may be, charged with having committed all or any of such offences, and any number of such offences may be tried at once; or he may be charged in the alternative with having committed some one of the said offences'.
(10) In some cases it has been held that the 'doubt' contemplated by this section is 'as to questions of law' and not a 'doubt as to facts'. This view has been criticised in Chittaley and Rao's commentary on the Criminal Procedure Code (7th Edition), Volume 2, at page 655. It has been pointed out there that the very illustrations, appended to the section, demonstrate hat the doubt may be as to 'question of fact' especially, illustration (c). Counsel for the respondents cited Nanak Chand v. State of Punjab, : 1955CriLJ721 in support of his contention that only a doubt regarding a question of law fell within section 236 of the Code of 1908, of which section 221(1) in the present Code is a replica. I would accept that there is a sentence in paragraph 12 of that judgment which, taken it erally, does seem to support that contention; but I am not sure that Chittaley and Rao are not right when they res'rict the ratio of that authority to a case 'Where the prosecution is itself not clear as to what facts it will rely upon'. However, on the present occasion, it is not necessary to pursue this point further as it does not arise for decision, and I have mentioned it only incidentally in trying to give an exposition of the subsection.
(11) The lesson to be drawn from section 221(1) is that when there is a doubt as to which of several offences will be constituted on the fact's which can be proved, charges should be framed in respect of all, either cumulatively or alternatively.
(12) Then, the Code goes further. It proceeds to safeguard against an omission to use section 221(1) when it ought to have been applied. Sub-sections (2) of that section validates the conviction of an accused for an offence with which he might have been charged under the first subsection, notwithstanding that, in fact, he was not so charged. Clearly, the purpose is to prevent the failure of a case on account of the neglect, inadvertence or mistake of the judge.
(13) In choosing the charge, the various subsections of section 222 must also be borne in mind. Particularly relevant to the present case, arc subsections (1) and (2). They read as follows :
'(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offencc. and such combination is proved, but the remaining 'particulars are not proved, he may be convicted of the minor offence, though he was not charged with if.
(2)When a person is charged with an offence and facts arc proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with if.'
(14) These subsections would suggest to the judge that it is wiser to charge for the most serious offence that can be constituted by the allegations of the prosecution. That way, the options remain open. The accused may be convicted of the offence charged or the minor offence, depending on what is ultimately proved at the trial. But there is no provision in the Criminal Procedure Code stating the converse of the propositions in these two subsections. thereforee, if the accused is only charged with the minor offence, he cannot be convicted of the more serious offence despite the evidence at the trial taking the case that far : see Willie (William) Slaney v. State of Madhya Pradesh, : 1956CriLJ291 . The principle underlying these subsections is that a charge for the more serious offence gives notice also of the facts constituting the minor one, and the accused is not prejudiced in his defense. Hence, the prerequisite that the minor offence should be of the nature described by the subsections.
(15) In a case covered both by section 221(1) as also section 222. it is a simple deduction that separate charges need not be framed for the various offences. If the 'several offences', respecting which shere is a 'doubt' within the meaning of section 221(1), arc so related as to come within any of the first three subsections of section 222, the accused can always be convicted of the minor offence though he is charged only with the more serious one. A charge for the minor offence is thus redundant.
(16) Naturally, it should be the endeavor of a judge to so conduct' a proceeding that it will not be rendered futile because of a technical flaw. The procedure of framing a charge is intended to warn the accused of the case he has to meet, and obtain his plea : see Kahan Singh and others v. The State of Haryana, : 1971CriLJ806 . He can, thereforee, justly complain of being taken by surprise if it is sought to convict him of an offence with which he was not charged : see 'The State v. Durgeswar Datta and others, Air 1958 Gauhati 44. As I have already mentioned, section 218(1) requires that there must be a separate charge or every distinct offence. But, because of the uncertainties which exist at the stage of framing a charge, and the impossibility of knowing how exactly the evidence will shape at the trial, sections 221 and 222 provide means to attain a margin of safety. In doubtful cases, prudence would tell the judge to take advantage of those sections. Having regard to what they enact, and the situation in which he is called to make a decision, the judge would be well advised: (i) to frame charges, for all the possible offences capable of being constituted by the materials produced by the prosecution, and (ii) frame a charge for the more serious offence rather than the minor one. I would regard these as two important guidelines emanating from ther Code.
(17) However, counsel for the respondents maintained that a charge should be framed for that offence which the court thinks 'it is reasonably probable the prosecution will be able lo prove'. For this submission he relied on State of Karnataka v. L. Muniswamy and others, : 1977CriLJ1125 ; State of Bihar v. Ramesh Singh, : 1977CriLJ1606 and Union of India v. Prafulla Kumar Samal and another, : 1979CriLJ154 . All these cases were concerned with the question whether the accused should be discharged or made to stand trial. They turned on sections 227 and 228 of the Criminal Procedure Code. It seems to me that these authorities are not really relevant to the point arising in this case. They have nothing to say on the question of selecting the offence or offences for which the accused should be charged Whether the allegations of the prosecution make out a prima facie case and are credible is one thing. The answer to that decides whether the accused should be discharged or made to stand trial. If is a somewhat different question, what is the appropriate charge that should be framed after it has been decided that the accused should be charged Sections 221 and 222 are relevant to this question, but have nothing to do with the former. That shows that, howsoever subtle the distinction, they are different questions, although in practice they are decided at one and the same time. And, if the answer to the first question results in the accused being discharged, the second question never arises.
(18) Even supposing the distinction I have drawn be not valid, the authorities cited by counsel for the respondents do not lend any support to his proposition. No doubt they hold that at the stage of framing a charge the court may 'sift and weigh' the materials presented, and should not abdicate its Judgment to become a mere 'mouthpiece' of the prosecution, Yet, they are equally emphatic that the court should not enter into the 'pros and cons' as it would do at the end of the trial. The only question to be considered at this initial stage is whether there is a prima facie case against the accused. The test is whether there is 'sufficient ground for proceeding against the accused' and not whether there is sufficient ground for his conviction. A 'strong suspicion' is enough for 'presuming that the accused has committed an offence' and ordering that he be tried. The principle that the accused is presumed to be innocent and should be given the benefit of the doubt has no application at this stage. Nor is any 'weight to be attached to the probable defense of the accused'. Ramesh Singh's case is very explicit on all these points.
(19) Far from supporting the submission of counsel, as I understand those cases, they go against it. They caution against making a 'meticulous' judgment as to 'the 'truth, veracity and effect of the evidence' proposed to be adduced. Adjudicating, at this stage, on what 'it is reasonably probable the prosecution will be able to prove' would be to prejudge the case of the prosecution: and, should the decision be adverse, their case would be foreclosed. It is a different mater if the case of the prosecution does not make out an offence in law or is 'self-contradictory or intrinsically untrustworthy'. In that event, the accused is discharged because no suspicion is successfully raised against him.
(20) But, I agree with counsel for the respondents that, even at the stage of framing a charge, it is open to the accused to establish, from the materials produced by the prosecution itself, that the case falls under a General or special exception contained in the Indian Penal Code. This is now settled by Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar and another, : 1SCR1
(21) However, in ruling on such a plea it is of the almost importance not to forget section 105 of the Indian Evidence Act 1872. That section says :
'WHENa person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court; shall presume the absence of such circumstances.'
The last words should be specially noted : 'the Court shall presume the absence of such circumstances'. They imply that until and unless the accused discharges the burden of proving the existence of circumstances bringing the case within the exception, the court is bound to hold the other way. As to the standard of proof required to discharge that burden, the authorities show that it is the same as in a civil case. The accused must carry the proof to a preponderance of probability in favor of the exception applying : see Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, : 1964CriLJ472 and Yogendra Morarji v. State of Gujarat, : 1980CriLJ459 .
(22) With this background of the law, I turn to the present case. In the post-mortem report, the doctor has said that the injury on the right side of the forehead of Ami Lal was 'sufficient to cause death in the ordinary course of nature'. That straightaway brings the case within the definition of murder in the third paragraph of section 300 of the Indian Penal Code, regardless of whether the assailant intended to cause the death of Ami Lal or not : see Bakhtawar and another v. The State of Haryana, : 1979CriLJ883 . Counsel for the petitioner maintained that the case was covered, also, by the definitions in some other paragraphs of that section; but it is unnecessary to go into that, since the third paragraph suffices to make out a prima facie case of murder. thereforee, unless it could be shown, that some exception applied, the judge was bound to charge the respondents under section 302 for the murder of Ami Lal.
(23) In his order the judge does not expressly refer to any exception, but it is abundantly clear from the tenor of his reasoning that he had Exception 4 of section 300 in mind. That is the footing on which, the case was debated before me. Exception 4 reads as follows :
'CULPABLEhomicide is not murder if it is committed without premeditation in a sudden fight in the. heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation. : It is immaterial in such cases which party offers the provocation or commits the first assault.' To bring a case within exception, there are five conditions which must be fulfillled. The culpable homicide must have been committed (1) without premeditations (2) in a sudden fight (3) in the heat of passion (4) upon a sudden quarrel and (5) without the offender's having taken undue advantage or acted in a cruel or unusual manner. Even if one of these elements is lacking, the exception will not apply.
(24) On a little reflection it becomes apparent that apart from the condition as to the absence of premeditation, all the others are very much a matter of degree. What does 'sudden' mean When is passion at 'heat' What does 'undue' mean Or, for that matter, 'cruel' When is a manner of killing 'unusual' These are some of the nice questions of the exception raises. Even if all the facts are known in full detail, such questions are likely to present fine points for discussion. They are emotive in content, and involve a high degree of subjectivity. To fry and decide them at the stage of framing a charge, when only the barebones of the case are before the court, would, to say the least, be a speculative and unprofitable task, if not an impossible one. The difficulties increase when one remembers that, by section 105 of the Evidence Act, the burden is on the accused, which he has to discharge by showing that, on a preponderance of probability, each of the conditions of the exception exists.
(25) The broad point I am making is that the nature of this exception is such that it would be a rare case, indeed, in which the accused would be able to discharge his burden merely on the allegations of the prosecution. Even then an experienced judge would prefer not to decide the point without recording evidence. Knowing that section 222(2) of the Criminal Procedure Code would be available at the time of conviction, sagacity would cause him to charge the accused for murder under section 302 of the Indian Penal Code, leaving the exception to be proved at the trial. For, thereby, the possibility of prejudice to either side would have been avoided. The prosecution would not be precluded from securing a conviction under section 302. and, if the accused succeeded in discharging the burden of proving the exception, he could only be convicted under section 304 for the 'minor' offence of culpable homicide not amounting to murder. It is beyond dispute that the offence under section 304 is 'minor' in relation to the offence under section 302: see Emperor v. Abdul Wahab Kamruddin, Air 1945 Bombay 110(15).
(26) There are a few cases in which this approach is expressly advocated. In Bhamra v. The State, Air 1953 Bhopal 1(16), it was said that the question whether an offence falls under section 302 or 304 'is often a difficult question' and it is 'advisable' to commit the accused under section 302. Similar observations occur in In re Himloo Jaddu Gond, Air 1941 Nagpur 224. In Krishna Ram Das v.The State Air 1964 Assam 53(17), the observations are stronger. The judge said : '.............. .obviously the charge should be under section 302 Indian Penal Code and not under section 304, unless special circumstances are present which clearly and beyond any doubt indicate that the offence could only be one under section 304'. He criticised the prosecution for seeking to 'prejudge the case by deciding to frame a charge under section 304'. and drew attention to the 'aspect' that if the charge was under section 302, the judge could still come to the finding that the offence committed fell under section 304, and 'convict the accused on that charge, acquitting him of the charge under section 302'. la Emperor v. Maung Chit Sein, Air 1932 Rangoon 193(18), the Magistrate framed a charge under Section 324, Indian Penal Code, but in revision he was ordered to frame a charge for the more serious offence under section 307. The underlying notion is the same.
(27) But, not less telling, in support of what I have said is the fact that almost invariably in the reported cases an accused convicted under section 304, on the ground that Exception 4 applied is found to have been originally charged under section 302. That surely bespeaks a well-accepted, though, perhaps, not sufficiently articulated, practice of the courts. As some examples, I would refer to to Prandas v. The State. : AIR1954SC36 ; Dharmanv. State of Punjab, : 1957CriLJ420 Thakarda Lalaji Gamaji v. The State of Gujarat, : 1974CriLJ612 . And, there are numerous others. Even in Ram Swarup v. The State of Haryana, : AIR1977SC664 , on which the judge, in the present case, has relied, the charge was again under section 302. That is the vital point the judge has missed. The hazard of framing a charge under section 304 is well illustrated by State of Andhra Pradesh v. Rayavarapu Punnayya and another, : 1977CriLJ1 . In that case the trial judge convicted the accused under section 302, but the High Court converted it into a conviction under section 304. The Supreme Court restored the conviction under section 302. Had the original charge not been under that section, the Supreme Court might have been rendered helpless to do What the law and justice required.
(28) Out of curiosity, I invited counsel for the respondents to, cite cases in which Exception 4 had been implemented at the stage of framing a charge. After some considerable research he offered Sadhu v. Emperor, Air 1938 Lah 618 Brundaban Swain and others v. State, Air 1957 Ori 117, State v. Badri and others. : AIR1957All714 . The State v.Durgeswar Datta and others, Air 1958 Assam 44 and Lutai v. State, . No doubt the charge in these cases was framed under section 304, but the whys and wherefores are unknown. It may even be that the prosecution itself asked for that charge; a course, which I have shown, has, been condemned. There is no discussion on the point, and I am unable to derive any assistance from these cases.
(29) The only case in which there is the semblance of a discussion is State v. Amma Bhat and others, . But even there all that the judge has done is to recite the 'circumstances as found by the committing court' and then to say 'that makes it clear' the crime comes within Exception 4, of which he reproduces the words. He does not analyze the exception or examine whether each of its conditions is fulfillled. Nor does he at all advert to section 105 of the Evidence Act or sec ion 222(2) of the Criminal Procedure Code. He relies for his decision on Chamru Budhwa v. State of Madhya Pradesh, : AIR1954SC652 but unfortunately fails to notice that in that case itself the charge was under section 302. The great difference between the situation at the time of framing the charge and at the time of conviction docs no: appear to have been brought out before the judge. In these circumstances, I am not prepared fo attach much weight to that authority.
(30) I, also, invited counsel for the respondents to tell me what would be the prejudice caused to an accused if a charge is framed for the more serious offence rather than the 'minor' one in the sense of section 222 of the Criminal Procedure Code. At first, the only answer he was able to give was that' having framed a charge for the more serious offence the judge would feel 'committed' to finding the accused guilty of that offence. To that, I retorted, that if judges could not be relied upon even to keep an open mind to that small extent, no one who was charged with an offence would ever be acquitted.
(31) Later, after more thought, counsel added, that being charged for a more serious offence might reduce the 'chance' of the accused obtaining bail, and may dissuade him from pleading guilty which he might be willing to do to the minor offence. As to bail, more often than not, it is applied for before a charge is framed. It is granted or refused depending on the 'accusations'. And, the 'accusations' do not change, no matter what the charge. As to the accused being 'deprived' of the right to plead guilty, I need only observe that the law does not countenance the idea of a charge being framed to facilitate such a plea. No other kind of prejudice could be thought of by counsel for the respondents. It is significant that in Maung Chit Sein's case, to which I have referred earlier, it occurred to no one to suggest that prejudice would be caused to the accused by the framing of a charge for the more serious offence. That confirms my view that there is no prejudice caused to the accused.
(32) In the order made by the judge, in the present case, there are a number of patent defects and errors. He has not even referred to Exception 4, let alone imbibing its full import and considering whether each of its conditions was satisfied. Neither section 105 of the Evidence Act nor section 222 or any other provision of the Criminal Procedure Code seem to have passed in his mind. He lost sight of the fact that the case was at the stage of framing a charge and not conviction. As I have mentioned already, he failed to observe that in Ram Swarup's case itself, on which he so confidently relied, the charge was under section 302. The result is that he has given definitive findings on disputable questions of fact without waiting for the evidence.
(33) There is, further, a glaring inconsistency in his order. In respect of the death of Ami Lal he held that Exception 4 applied and, thereforee, framed the charge under section 304 for culpable homicide not amounting to murder. Yet, on the same facts, for the injuries caused to Chhotu Ram, in the course of the same transaction, he framed a charge under section 307 for an attempt to murder. That necessarily implies that he held that the requirements of Exception 4 were not fulfillled. To be consistent, this second charge should have been under section 308 for an attempt to commit culpable homicide not amounting to murder. 34. He perpetrated the same inconsistency in framing charges in the case against Jai Narain and others. They. too, have been charged under section 307 for an attempt to murder one of the respondents. Yet, the transaction was the same, and if Exception 4 applied in the present case it necessarily had to apply in the other, so that, again, to be consistent, the charge in that other case should have been under section 308. I think, these inconsistencies conclusively demonstrate a lack of clarity in the thinking of the judge. They make his order utterly unsustainable.
(34) I should mention that counsel for the petitioner argued that it was not legally permissible for the judge to look at the record of the case against Jai Narain and others for the purpose of deciding what charges should be framed in the present case. He cited Mitthulal and another v. The State of Madhya Pradesh, : 1975CriLJ236 , in support of his submission. On the other hand, counsel for the respondents sought to use Ashok Kumar v. State I. L. R. (1973) Del 822, for justifying the course adopted by the judge. It is unnecessary to decide this point, because even granting that the judge could legally refer to the case against Jai Narain and others, it does not help to support his order. It only reveals, as I have just explained, a grave inconsistency between the charges in the two cases.
(35) Although I have listened to elaborate arguments as to whether the conditions of Exception 4 are satisfied in the present case, I must obviously refrain from saying more than the minimum necessary to decide upon the charge. All that I need to say is, that, whilst it is perfectly possible that at the trial the respondents may succeed in discharging the burden of proving that Exception 4 applies, I am not persuaded that they have discharged that burden at this stage on the bare allegations of the prosecution. In my opinion, the question needs to be tried. So, the proper course, in accordance with the practice discernible from the cases, is to charge the respondents under section 302.
(36) The reason given by the judge for refusing to frame charges under sections 147, 148 and 149 of the Indian Penal Code is, also, untenable. 'Pre-concert' is not necessary for the existence of an unlawful assembly. It is stated in the Explanationn to section 141 of that Code that 'An assembly which was not unlawful when it assembled, , subsequently become an unlawful assembly'. The transformation from one to the other occurs instantaneously at the moment the members of the assembly begin to have a 'common object' of the kind specified in that section. Accordingly, in Moti Das and others v. The State of Bihar, : AIR1954SC657 , it has been held that an assembly 'may turn unlawful all of a sudden and without previous concert among its members'. In that case the assembly was found to have become unlawful latest at the moment when one member called on the others to assault an opponent. In the present case, some of the persons examined in the course of the investigation have told the police that it was after Kanwar Singh shouted : 'Get hold of Ami Lal, let him not escape', that the respondents attacked Ami Lal, Chhotu Ram and Jai Narain. Thus, there was prima facie material suggestive of an unlawful assembly having been formed.
(37) Counsel for the respondents contended that since there was a sudden or free fight, there could be no unlawful assembly. He cited Kanbi Nanji Virji and others v. State of Gujarat, : 1970CriLJ363 , Lalji and others v. The State of U. P., : 1SCR367 , and Puran v. State of Rajasthan, : 1976CriLJ674 , in support of this contention. I have already pointed out the danger and the difficulty of deciding at this stage, without knowing the full facts, whether the fight was 'sudden'. The authorities cited by counsel for the responden's are distinguishable on that short ground. In all of them it was held after a trial that the fight was 'sudden'. In the present case, that stage has not yet reached. Hence, charges under sections 147, 148 and 149 ought to have been framed. I say nothing as to the true ratio of those authorities.
(38) That brings me to the final question : what charges should have been framed in the present case Reminding myself of the two guidelines which I have derived from the Criminal Procedure Code, earlier in this judgment, I think, the following eight charges ought to have been framed :
(1)A charge under section 302 against Fazal Mohammed for the murder of Ami Lal. because he is alleged to have struck the fatal blow. This is necessary to provide for the possibility that the case against the respondents jointly, both under section 34 and section 149, may not be proved. The authorities seem to hold that in such an event a particular accused cannot be convicted under section 302 unless so charged : or, at any rate, there is an irregularity in the proceedings that may or may not. be curable depending on the facts : see Nanak Chand v. State of Punjab, : 1955CriLJ721 , and Willie (William) Slaney v. State of Madhya Pradesh, : 1956CriLJ291 .
(2)A charge against all the respondents under section 302 read with sec ion 34 for the murder of Ami Lal.
(3)A charge against all the respondents under 'section 302 read with section 149 for the murder of Ami Lal. The previous charge will not dispense with the need for this charge because 'common' intention' is not the same as 'common object'; see Mot' Das and others v. The State of Bihar, : AIR1954SC657 . Although sections 34 and 149 overlap, they should not be 'rolled up into one' charge : see Willie (William) Slaney v. State of Madhya Pradesh, : 1956CriLJ291 and Bharwad Mepa Dana and another v. The State of Bombay, : 1960CriLJ424 (35). Moreover, section 149 is treated as constituting a specific offence : see Nanak Chand v. State of Punjab, : 1955CriLJ721 and Sheo Mahadeo Singh v. The State of Bihar, : 1970CriLJ1389 .
(4)A charge under section 307 read with section 34 against all the respondents for attempting to murder Chhotu Ram.
(5)Acharge under section 307 read with section 149 against all the respondents for attempting to murder Chhotu Ram.
(6)A charge under sections 323/324 read with section 34 against all the respondents for causing hurt to Jai Narain.
(7)A charge under sections 323/324 read with section 149 against all the respondents for causing hurt to Jai Narain.
(8)A charge against all the respondents under sections 147 and 148.
(39) As a last resort, counsel for the respondents pleaded that I should not interfere in revision with the order by the judge. He cited State of Orissa v. Nakula Sahu and others, : 1979CriLJ594 , and A. S. Puri v. K. L. Ahuja, : AIR1970Delhi214 , to show that revisional jurisdiction should be exercised in exceptional cases and not simply because the revisional court comes to a different conclusion. But, in the first case itself the Supreme Court stated that interference in revision would be justified 'when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice'. That this case falls in either or both those categories is tar too obvious. The defects I have mentioned are 'glaring' and the errors are 'manifest'. I have no doubt that if allowed to remain the order could well produce a miscarriage of justice.
(40) For the reasons I have stated, this petition is allowed and the order dated 9th March 1981 made by the judge is set aside. He will now frame the eight charges I have indicated above, and proceed with the trial in accordance with law.