SUPREME COURT OF INDIA

Before:- Dr. A.S. Anand, CJl, R.C. Lahoti and Doraiswamy Raju, JJ.

Criminal Appeal No. 623 of 1992. D/d. 26.4.2001.

State of Tripura & Anr. - Appellants

Versus

Bhupen Dutta Bhowmik & Anr. - Respondents

Indian Penal Code, 1860, Sections 500, 501, 502, 115 and 117 - Criminal Procedure Code, 1973, Sections 227 and 228 - Complaint filed for offences under sections 500, 501, 502, 115 and 117 Indian Penal Code - Charges framed accordingly - On revision, the High Court set aside the charges under Sections 115 and 117 Indian Penal Code - Averment in the complaint and evidence showing prima facie case under these provisions - High Court not justified in quashing those charges.

[Para 5]

ORDER

For certain editorials published and printed in 'Dainik Sambad' dated 15.12.1990, 16.12.1990 and 20.12.1990, a complaint was filed by appellant No. 2, alleging that the three editorials contained a series of highly false and defamatory statements concerning the integrity, conduct and character of appellant No. 2 and that two editorials dated 15.12.1990 and 20.12.1990 contained a series of statements which were aimed at abetting, provoking, instigating and/or exhorting public or the people of the State generally to commit the murder of appellant No. 2 and other responsible officers of the Government and to dispose of the dead bodies of appellant No. 2 and other responsible officers after murdering them in a most inhuman manner. The complaint filed by appellant No. 2 was for offences under Sections 500/501/502 Indian Penal Code and Sections 115 and 117 Indian Penal Code. The expression used in the editorials have been referred to in paragraph 12 of the complaint and it is asserted that the action of the Editor and the Publisher is punishable under Sections 115 and 117 Indian Penal Code. The learned Chief Judicial Magistrate, after perusing the record, committed the case to the Court of sessions. Vide order dated 6.8.1991, the learned Additional Sessions Judge found that there was a prima facie case on the basis of the averments in the complaint and the preliminary evidence recorded in the complaint for framing charges against respondent No. 1 for offences under Sections 500/501/502 and 115/117 Indian Penal Code and framed the charges accordingly. Charges were also framed against respondent No. 2 for offences under Sections 500/501/115/117 Indian Penal Code. The respondents filed a criminal revision before the Guwahati High Court. A learned Single Judge of the High Court vide judgment and order dated 8.6.1992 held that prima facie case under Sections 500/501/502 Indian Penal Code was made out. The learned Single Judge, therefore, did not interfere with the framing of the charges for the said offences. However, so far as charges under Section 115/117 Indian Penal Code are concerned, the learned Single Judge opined that those charges could not have been framed and quashed the same. It was observed :

"I have read and reread both at the original translation and Bengali version of the editorials and I am unable to hold that for framing charges under Sections 115 and 117 Indian Penal Code a prima facie case has been made out. I say so as in the charge itself, it has been stated that by allowing publication of the aforesaid editorials, the accused petitioner abetted the commission by the people of Tripura generally of an offence of murder (emphasis supplied). By no stretch of imagination it can be said that the entire population of the State was instigated to commit murder and materials for framing charge under the above two Sections are patently absurd and no prudent person can reach the conclusion that the entire population of the State was instigated."

2. This appeal by special leave calls in question the order of the High Court quashing charges against the respondents for offences under Sections 115/117 Indian Penal Code.

3. We have heard learned Counsel for the parties.

4. At the stage of framing of charges, the Court was required to examine the broader probabilities of the case. The preliminary evidence which had been led before the trial Court, coupled with the averments in the complaint did justify the framing of charges for offences under Section 115/117 Indian Penal Code. The opinion expressed by the learned Single Judge of the High Court (supra) does not appeal to us. It ignores the specific language of Sections 115 and 117 Indian Penal Code. Those Sections read thus :

Section 115 provides as follows :

"115. Abetment of offence punishable with death or imprisonment for life - if offence not committed. - Whoever abets the commission of an offence punishable with death or (imprisonment for life), shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

If act causing harm be done in consequence and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine."

"117. Abetting commission of offence by the public or by more than ten persons. -. Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".

5. From a bare reading of the averments in the complaint and the evidence of P.Ws. examined at the stage of framing of charges by the trial Court, it can be said that ingredients of the offences, as contained in the two Sections, were made out. Whether or not the respondents can be found guilty of these offences and convicted as such, is a matter to be decided at the trial. At the stage of framing of charges, all that was required to be seen by the Court was whether ingredients of the offences could be said to have been made out from the averments in complaint and the preliminary evidence led in support thereof. The learned trial Court was, in the facts and circumstances of the case, justified in framing the charges against the respondents for offences under Sections 115/117 Indian Penal Code. The High Court fell in error in quashing those charges on an erroneous interpretation of Section 117 Indian Penal Code. We, therefore, set aside the order of the High Court dated 8.6.1992 and restore that of the trial Court framing charges for offences under Sections 115/117 Indian Penal Code.

6. We wish to clarify that we have considered the present appeal only for the purpose of framing of charges under Sections 115/117 Indian Penal Code and our order shall not be construed as any expression of opinion on the merits of the case.

7. At this stage, we have been informed that respondent No. 1 has since died on 9th September, 1997. Learned Counsel for the appellant does not dispute that position. So far as respondent No. 1 is concerned, therefore, the entire complaint has been rendered infructuous. The trial shall only proceed against respondent No. 2.

8. The appeal is disposed of in the above terms.

Orders accordingly.