SUPREME COURT : NO DIRECT ARREST IN 498-A IPC

SHEORAN & TANWAR ASSOCIATES (Law Firm) 111, SHIV NAGAR - II, MURLIPURA SIKAR ROAD, JAIPUR (RAJASTHAN) Website:- www.stlegal.in Email: stlegaljaipur@gmail.com Contact Us : 0141-2262495/ Mob: +91-9001612660 (Office) Practicing at : RAJASTHAN HIGH COURT , JAIPUR / JODHPUR The Hon'ble Supereme Court given a landmark judgment on arrest in 498-A IPC cases The Hon'ble Supreme Court has been giving judgments on misuse of IPC 498a for many number of years, and they had even asked the law ministry to consider amending it. Many states have police circulars already on doing investigation or taking permission of higher police like DCP before arresting under 498a, but there is no guarantee that these rules are followed. The advisory/letter/circular issued by home ministry in government of India is given here. According to latest on the ground information, Punjab police has refused to arrest in a 498a case filed in Jun 2014 citing this SC judgment. Which means that threat of contempt of court and departmental action has got some sense into police that they have to follow CrPC 41 and 41a and not merely act like zombies and arrest everyone and their dog upon filing 498a complaint. People are advised to file contempt of court in High court against police if they arrest you without following CrPC 41 and 41a guidelines. If your advocate doesn’t want to do it, find someone who can.full judgment text is given at end of the post now along with summary of important points on how to fight back both police and judiciary for those facing threat of arbitrary and unjustified arrests. You can skip to that unless you are also interested in reading my rants against judiciary below! I don’t think this ONE MORE JUDGMENT will bring an immediate change on the ground, but it is one more step towards abolishing of 498a, maybe within next 10-15 years. That is the only solution for such laws, not passing an order every 2 years and exhorting police to do their duty. I am quite amused by this ‘judicially examined’ part. As I posted earlier about a Tamilnadu false rape case, the innocent man’s plea to prosecute the police was dismissed by lower court as well as high court of Tamilnadu and only after reaching Supreme Court could he get the order to prosecute the police for proceeding with a patently false case. So by all evidence on the ground, courts are not really interested in prosecuting police for blatant violations of human rights, but they do give some lectures to police from time to time just like in this judgment. The apex court said the attitude to arrest first and then proceed with the rest is “despicable” which must be curbed and directed all state governments to ensure that police do not resort to arresting in all offences punishable up to seven- year jail term including dowry harassment cases. “We direct all the state governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 CrPC,” a bench headed by Justice C K Prasad said. Section 41a of CrPC has been put in place since 2010 but by all evidence from 498a cases, police doesn’t bother to record reasons for arrest or no arrest as is required under that section. “No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation,” the bench said. Referring to crime statistics, the apex court said 1,97,762 persons were arrested in 2012 for offence under Section 498-A and nearly a quarter of those arrested under this provision were women depicting that mothers and sisters of the husbands were liberally included in their arrest net. “Its share is 6 per cent out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5 per cent of total crimes committed under different sections of penal code, more than any other crimes except theft and hurt,” it said. It said the rate of charge-sheeting in cases is as high as 93.6 per cent, while the conviction rate is only 15 per cent, which is lowest across all heads and as many as 3,72,706 cases are pending at trial stage. Actually the conviction rate according to NCRB data is 7% only, and much lesser if dowry death convictions under IPC 304B are excluded. The conviction to arrest rate is 1 in 25, so 25 people are arrested to convict 1 person. Long live 498a and women empowerment! “Power to arrest greatly contributes to its arrogance so also the failure of the magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive,” it said. Every one wants to beat on the police! But let’s ask if judiciary has its shirt clean and white. 1. What about the magistrates who ask the accused husband in 498a cases: “Do you have a compromise?”. Who created this precedent of asking accused for compromise in a criminal case? Is it police? No, it is judiciary. 2. Who was the person who said rape ‘victim’ should have the choice to marry the accused. Some police chief ? No, it was ex-CJI Balakrishnan while he still was acting chief justice of supreme court. The whole culture of subversion of criminal law by asking for compromise in 498a and compromise in ‘rape’ is mainly a creation of judiciary, so they shouldn’t blame the police for everything. Having given my rants against judiciary, I have now got a copy of the full judgment and below are some vital points in this judgment followed by full text. Lot of hopes have been raised that now arrests under 498a will stop somehow, but that may happen only after the message percolates down to police stations all over India, AND the citizens demands its enforcement. NCW (National confusion (commission) for women), Women’s NGOs and domestic violence industry who hide in the background and whose business is threatened may ask for a review for this judgment and it will be an interesting battle unlike the easily reversed judgment on mother in law kicking daughter in law not cruelty under IPC 498a Last but not the least, I don’t expect lawyers to take any initiative in its enforcement (they tend to follow the tested and beaten path and always advise husbands the C word), so the people affected will have to take the initiative and force their lawyers to ask for its enforcement in courts. FULL JUDGMENT OF SUPREME COURT Arnesh Kumar Vs. State of Bihar & ANR. [Criminal Appeal No. 1277 of 2014 @Special Leave Petition (CRL.) No.9127 of 2013] Chandramauli Kr. Prasad The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine. Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition. Leave granted. In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant's notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non- fulfilment of the demand of dowry. Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. "Crime in India 2012 Statistics" published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short 'Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows: "41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person - (a)x x x x x x (b)against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :- (i) x x x x x (ii) the police officer is satisfied that such arrest is necessary - to prevent such person from committing any further offence; or for proper investigation of the offence; or to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. X x x x x x From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows: "41A. Notice of appearance before police officer.- (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice." Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid. We are of the opinion that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC; All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii); The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance. By order dated 31st of October, 2013, this Court had granted provisional bail to the appellant on certain conditions. We make this order absolute. In the result, we allow this appeal, making our aforesaid order dated 31st October, 2013 absolute; with the directions aforesaid. .........................J. (CHANDRAMAULI KR. PRASAD) .........................J. (PINAKI CHANDRA GHOSE) NEW DELHI, July 2, 2014 FOR MORE DETAIL VISIT AT http://www.stlegal.in/index.php/other-updates

CRIMINAL ADVOCATE OF RAJASTHAN HIGH COURT JAIPUR

SHEORAN & TANWAR ASSOCIATES (Law Firm) 111, SHIV NAGAR - II, MURLIPURA SIKAR ROAD, JAIPUR (RAJASTHAN) Website:- www.stlegal.in Email: stlegaljaipur@gmail.com Contact Us : 0141-2262495/ Mob: +91-9001612660 (Office) Practicing at : RAJASTHAN HIGH COURT , JAIPUR / JODHPUR CONVICTION UNDER SECTION 302 IPC WAS WRONG Supreme Court Order.. Raju @ Raj Kumar Vs. State of Rajasthan [2007] Insc 507 (3 May 2007) S. H. Kapadia & B. Sudershan Reddy CRIMINAL APPEAL NO. 664 OF 2007 (Arising out of S.L.P. (Crl) No.4446 of 2006) KAPADIA, J. (1) Leave granted. (2) This criminal appeal by grant of special leave is directed against impugned judgment dated 13.1.06 delivered by Rajasthan High Court at Jaipur in D.B. Criminal Appeal No.660/04 confirming the conviction under Section 148 IPC imposed by Addl. District and Sessions Judge, Jaipur, in Session Case No.49/2001. (3) On 1.9.1989 at 9.20 pm Uttam Prakash (pw.4) lodged an FIR at Police Station Ashok Nagar, Jaipur, in which he claimed that he and his father Ram Kishan Khandelwal (since deceased) had left their house, situated at A-10, Sikar House Area, for his uncle's house at C-10, Madan Kunj, Prithvi Raj Road, Jaipur, when at 9 pm while the deceased was sitting on the bed talking with PW.4's aunt and uncle, 10 to 12 persons entered the room and surrounded the deceased. These 10 to 12 persons were armed with knives, swords and pick-axes. PW.4 was threatened and told not to shout. PW.4 in his FIR stated that in his presence the accused (appellant herein) stabbed his father, Ram Kishan Khandelwal. According to the FIR, when PW.4's uncle raised an alarm the appellant herein along with others fled. Ram Kishan Khandelwal died. According to the FIR, there was enmity between Ram Kishan Khandelwal on one hand and Hanuman, Hanif, Chhitar and Ramesh Shanker on the other hand. On the basis of the said report investigation commenced. The case was registered for offences under Sections 147, 149 and 302 of Indian Penal Code (for short, 'IPC'). On the basis of the information given by the appellant herein, weapons of offence and blood soaked clothes were recovered. PW. 25, a Judicial Magistrate, conducted identification parade of the appellant herein and others. The police thereafter submitted their charge- sheet, inter alia, against the appellant herein. 31 witnesses were examined. 74 documents were produced by the prosecution. During the course of the trial it was revealed that Ram Kishan Khandelwal and his family used to live at Sikar House Area in Jaipur. Hanuman and Chhitar were his neighbours. They were on inimical terms. There was property dispute. The bathroom of Hanuman and Chhitar was demolished by Jaipur Development Authority. Hanuman and Chhitar were under the impression that the bathroom was demolished on the complaint of Ram Kishan Khandelwal. Hanuman and Chhitar sold their house to Hanif (one of the co- accused). Prior to his death, Ram Kishan Khandelwal had lodged an FIR with Police Station Shastri Nagar, Jaipur, in which he had asked for police protection. Ram Kishan Khandelwal was also an accused in many criminal cases. These cases were pending. According to the prosecution, Hanuman, Chhitar and Hanif entered into a criminal conspiracy for the murder of Ram Kishan Khandelwal. According to the prosecution, however, the appellant herein along with Aziz, Iqbal, Mahendra Singh, Hamid and Firoz committed the actual murder. Therefore, according to the prosecution there were two groups of persons, the first set/group of persons entered a criminal conspiracy but the actual murder was done by Iqbal, Aziz, Raju Naik (appellant herein), Mahendra Singh, Hamid and Firoz. (4) In this case, we are concerned with the conviction of Raju Naik (appellant herein). He was charged for offences under Sections 302, 120B, 148, 149 and 460 IPC. (5) Two issues arise for determination in this criminal appeal. The first concerns the merits of the case and the second concerns an argument advanced on behalf of the appellant that the appellant has completed the sentence of three years on 8.3.2007 as he was convicted for offence under Section 148 IPC which has been disputed by the State on the ground that the appellant stood convicted under Section 302 IPC and sentenced to life imprisonment. (6) On the merits of the case, we find that there is no reason to disbelieve Uttam Prakash (pw.4), the son of Ram Kishan Khandelwal (deceased). The incident took place on 1.9.89 around 9 pm when the deceased was sitting on the bed. Uttam Prakash (pw.4) and his father, Ram Kishan Khandelwal, had gone for dinner at his uncle's place at C-10, Madan Kunj, Prithvi Raj Road, Jaipur. When the deceased was sitting on the bed Uttam Prakash (pw.4) saw 10 to 12 persons entering the room and surrendering Ram Kishan Khandelwal. They were armed with knives, swords and pick-axes. Uttam Prakash (pw.4) saw the deceased being stabbed. Uttam Prakash (pw.4) has deposed that it was dinner time, that the deceased was sitting on the bed whereas he was in conversation with his aunt. Both the courts below have come to the conclusion, placing reliance on the post- mortem report, that there was an injury on the chest of the deceased and that the knife and the clothes recovered vide Ex.P.32 had human blood. The cause of the death, as given in the post-mortem report, was syncope. There was one more witness Rattan Devi (pw.20) but she could not identify the appellant in the identification parade. However, both the courts below have come to the conclusion, on the basis of the evidence of pw.4 that the appellant herein (Raju @ Raju Kumar) was a member of the unlawful assembly; that he carried the knife; that he had entered the room where the deceased was sitting on the bed and that Ram Kishan Khandelwal (deceased) was stabbed to death by the appellant herein. In the circumstances, we do not find any infirmity to the extent of the conviction of the appellant herein under Section 148 IPC. (7) The question is : whether this Court in special leave petition could convict the appellant under Section 302 IPC without any appeal from the State. (8) Now coming to the second issue, we find that in this case seven out of ten accused were convicted by Additional District and Sessions Judge, No.1, (Fast Track) Jaipur City, Jaipur, for different offences. Appellant herein was charged under Section 148, 302, 120B and 460 IPC. However, he has been convicted under Section 148 IPC. According to the trial court the cause of death is syncope. According to Butterworth's Medical Dictionary, 'Syncope' is a temporary loss of consciousness caused by a fall in blood pressure. (9) We also quote hereinbelow paras '65' and '66' of the said judgment which read as follow: "65. From the above decision I have reached the conclusion that out of all the accused, the accused No.(1) Abdul Aziz s/o Salamuddin, accused No.2 Raju @ Raj Kumar s/o Mali Ram, accused No.3, Durga Das @ Bhaya s/o Bhanwar Lal have committed punishable crime u/s 460, 148 and 302 of Indian Penal Code for which their crime is hereby proved and the accused No.4, Feroz @ Shreya s/o babu Khan has committed punishable crime under the Indian Penal Code Section 148, 302/149, 460 for which their crime is hereby proved and the accused No.5 Hanuman Sahai s/o Mahadev Prasad, accused No.6 Chhitar Mal s/o Mahadev Prasad, accused No.7 Mohd. Haneef s/o Abdul Hakim have committed punishable crime u/s 302/120B of the Indian Penal Code for which their crime is hereby proved and the accused No.8 Sayeed s/o Abdul Rasheed is acquitted from the allegations of punishable crime under Section 302 read with Section 149, 148, 120B and 460 of Indian Penal Code. 66. This case is a matter of murder, conspiracy to murder and co-operation in murder for which it would be justified to punish the accused with the minimum punishment and for rest of the crime the accused were heard, for which they are punished with rigorous imprisonment as mentioned below: SENTENCE Therefore, the accused mentioned below on being found guilty under Section as mentioned against each under Indian Penal Code are punished as below: Sl. NO. Name of the Accused Section Punishment Penalty Illegible (sic) 1. Abdul Aziz 460 Ten years 500/- 3months 2. Raju @ Raj Kumar 148 Three years 200/- 1 month 3. Durga Das @ Bhaya 302 Life Imprisonment 1000/- 6months 4. Feroz @ Sherya 460 Ten years 500/- 3months 148 Three years 200/- 1 month 302/149 Life Imprisonment 1000/- 6months 5. Hanuman Sahai 302/120B Life Imprisonment 1000/- 6months 6. Chhitar Mal - do - - do - - do - - do - 7. Mohd. Haneef - do - - do - - do - - do - The accused in this case are on bail, hence for getting the punishment they are being taken in the judicial custody. The punishment warrant of the accused may be prepared as per above and sent to the Central Jail, Jaipur. Punishment of all the crime will be simultaneous. In this case, the seized item of proof will be destroyed after expiry of six months of the appeal period. The file after recording of the decision may be admitted in the office. The accused with the proven crime may be provided with a copy of the decision without any cost." (10) If one reads para '65' with para '66', we find that Abdul Aziz has been accused No.1 and he is convicted under Section 460 IPC. This is clear from para '65'. It is in consonance with the chart in para '66'. Similarly, the appellant (Raju @ Raj Kumar) was accused No.2 and he has been convicted under Section 148 IPC. This is clear from para '65'. To this extent, para '65' is in consonance with para '66' (chart annexed thereto). Durga Das was accused No.3 and he has been convicted under Section 302 IPC both under paras '65' and '66'. It appears from the reading of para '65' that accused No.1 was convicted under Section 460 IPC, accused No.2 was convicted under Section 148 IPC and accused No.3 was convicted under Section 302 IPC respectively. The word "respectively" is omitted. Be that as it may, the State did not go in appeal against the order of the trial court convicting Raju @ Raj Kumar (appellant herein) for convicting him under Section 302 IPC in addition to his conviction by the trial court under Section 148. Even the High Court, by the impugned judgment, has merely dismissed the appeal filed by the appellant herein upholding the conviction of Raju @ Raj Kumar under Section 148 IPC. It is argued before us, on behalf of the State, that we should convict the appellant herein under Section 302 IPC, particularly, when the reasoning given in the concurrent findings indicate that the appellant herein had stabbed the deceased in the chest with the knife. In our view, such a request cannot be granted. Offence under Section 148 IPC is distinct and separate from the offence under Section 302 IPC. The State should have filed an appeal seeking conviction of the appellant under Section 302 IPC apart from his conviction under Section 148 IPC. This has not been done in the present case. The offence of rioting with deadly weapon under Section 148 IPC is separate and distinct from the offence under Section 302 IPC. Moreover, according to the trial court, the cause of death is syncope. (11) In the case of Satbir v. Surat Singh and others AIR 1997 SC 1160, the accused was sentenced under Section 302/148 IPC and, therefore, this Court took the view that separate sentence under Section 148 was not necessary. (12) In the case of Nanda Kishore Mohanty v. The State of Orissa AIR 1961 Orissa 29, it has been held that once a charge under Section 148 IPC was framed the Magistrate must say whether the person charged is convicted or acquitted. In that case, though the petitioner was charged under Section 148 IPC, the judgment of the Magistrate was silent as to whether petitioner was guilty or not. The Additional Sessions Judge assumed that the petitioner stood convicted under Section 148 IPC altered the conviction to Section 147 IPC. In that case, the petitioner was also charged under Section 455/149 IPC and under Section 323/149 IPC. In that connection, it was held as under :- "(6) Another serious mistake committed by the Magistrate was his omission to mention expressly in his judgment as to whether he convicted the petitioner under Section 148, I. P. C., or not. Once a specific charge under that section was framed, the Magistrate must expressly say whether he convicts the accused of that offence or whether he acquits him of that offence. Though the petitioner was charged under Section 148, the judgment of the Magistrate is silent as to whether that charge was proved or not. The learned Sessions Judge also committed an error by overlooking this mistake on the part of the trying Magistrate and assuming that there was a conviction under that section by the Magistrate and that he would be justified in altering it to a conviction under Section 147, I. P.C. It is indeed unfortunate that in cases of this type where sentences of imprisonment have been passed the two lower courts should have committed such obvious mistake, presumably through negligence. (7) The net result therefore is that though the petitioner was charged under Section 148, I. P. C., the trying Magistrate has not passed any order, either of conviction or acquittal in respect of that charge and the Sessions Judge has convicted him under Section 147, I. P. C. The omission of the trying Magistrate to convict the petitioner under Section 148, I. P. C., must in the circumstances be held to mean that he was acquitted of that charge. It is immaterial whether this omission was due to oversight or any other reason. Once there is, thus, an acquittal of the petitioner of the charge under Section 148, I. P. C., the Sessions Judge has no jurisdiction to alter the conviction to one under Section 147, I. P. C. The State should have moved the High Court for setting aside the order of acquittal in respect of the charge under Section 148. But this they did not do. (8) The acquittal of the petitioner in respect of the offence under Section 148, I. P. C., will also affect his conviction under Section 455/149, I. P. C., and 323/149, I. P. C. The conviction for these two offences is based on the assumption that the petitioner was a member of the unlawful assembly but his acquittal in respect of the charge under Section 148, I. P. C., must necessarily lead to the inference that he was not a member of such an assembly. Hence, his conviction under Sections 455 and 323, I. P. C., read with Section 149, I. P. C., must be set aside. (9) There seems some force in the contention of the learned Standing Counsel for the State of Orissa, that the initial mistake was committed by the trying Magistrate through oversight, and he suggested that the case might be remanded to the trying Magistrate for recording a proper order either of conviction or of acquittal in respect of the charge against the petitioner under Section 148, I. P. C. But I am not satisfied that at this stage it will be proper to remand the case for the aforesaid purpose. The incident took place more than four years ago, i.e., on 6-10-1955, and the petitioner has been sufficiently harassed because the appeal was first heard by the Addl. Sessions Judge but the judgment was set aside by the High Court in Criminal Revision and the appeal was reheard by the Sessions Judge of Cuttack. It will not be proper at this belated stage to revive the whole proceeding and subject the petitioner to further harassment of a conviction by the trying Magistrate and also possibly of an appeal before the Sessions Judge. The mistake was partly that of the trying Magistrate and partly that of the prosecuting officers. The latter should have noticed the omission in the judgment of the trying Magistrate and then taken steps either by way of revision to this Court or by means of an appeal against acquittal, to get the mistake rectified. (10) For the aforesaid reasons, I would allow this revision petition, set aside the conviction and sentence passed on the petitioner by the learned Sessions Judge, and acquit him. He should be set at liberty forthwith." (13) Before concluding we may state that one of the arguments advanced on behalf of the State was that no prejudice would be caused to the appellant if he was to be convicted under Section 302 IPC. It was contended on behalf of the State that if one goes through the entire judgment of the trial court it is clear from the reasoning that the trial court had found the appellant guilty of murder under Section 302 IPC and that the appellant has never made any grievance against the said finding. It is submitted on behalf of the State that even in the special leave petition, before this Court, this particular ground has not been taken by the appellant. We find no merit in this contention. We cannot convict the appellant under Section 302 IPC in the appeal preferred by the appellant herein. If we were to do so it would amount to travesty of justice. We cannot convict the accused under Section 302 without the State filing an appeal in that regard. In the present case, the State did not move the High Court in appeal against the conviction under Section 148 and nor did the State seek enhancement of punishment before the High Court in appeal. (14) For the above reasons, we find that the appellant herein was convicted under Section 148 IPC; that, he was not convicted under Section 302 IPC; that he was sentenced for three years with fine in addition, one month sentence in default of fine; and that Raju @ Raj Kumar (appellant herein) has served sentence for three years commencing from 9.3.2004 ending on 8.3.2007. We are not sure as to whether he has paid the fine of Rs.200/-, if not, he shall pay the fine forthwith. On payment of fine he should be set at liberty forthwith. If he fails to pay Rs.200/- as fine then he will have to serve the sentence of one month in default. (15) Accordingly, the appeal is allowed.