SUMMARY

Of

Business Conducted at Workshop

on

Registration of Documents,

Impounding of documents,

Common Intention, Common object,

Abetment and Criminal Conspiracy

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As per directions of Honourable Bombay High Court, the pattern of

judicial workshops changed this year. The judicial officers of Wardha District

were divided in two groups for submitting paper on civil and criminal topics. As

per selection of Honourable Principal District and Sessions Judge, each officer

had submitted paper on civil and criminal topic. With the paper on topic,

everyone had suggested recent pronouncements of Honourable Supreme Court

and Honourable Bombay High Court, for discussion at workshop.

The Workshop Committee, comprising five judges including Honourable

Principal District and Sessions Judge, Wardha had prepared a summary of papers

of judicial officers on the topics. The summaries of civil and criminal topics were

circulated before workshop to each judicial officer in the district. The softcopies

of the same were circulated through respective emails. Out of suggested recent

pronouncements, the Workshop Committee had selected eleven

pronouncements for discussions. Softcopies of those pronouncements with a

hyperlinked list were circulated before workshop to each judicial officer.

As per new pattern of workshop, administrative problems were called

from every officer. The problems were shortlisted to be addressed.

For the third workshop of this year, Honourable Smt. Justice Vasanti

Naik, Guardian Judge of Wardha District, has selected topic of ‘Registration of

Documents and Impounding of Documents’ and ‘Common Intention,

Common Object, Abetment and Criminal Conspiracy’. The workshop was

scheduled on 18th January 2015, at Conference Hall of District Court Wardha.

The Workshop was inaugurated by lightening of traditional lamp and

Saraswati Poojan. The Principal District and Sessions Judge Madam Vibha

Kankanwadi had delivered the Welcome Speech on the topic. Expressing concern

over need of cautious look to impounding of documents, Madam Vibha

Kankanwadi, the Principal District and Sessions Judge, Wardha, had asked each

judicial officer to take live part in discussion.

Thereafter, Mr. Yashdeep L. Meshram, [CJJD and JMFC, Seloo, Dist-

Wardha] had read over the Summary on Civil Topic. The summary was projected

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on screen using projector, simultaneously while it was read. Each judicial officer

was reading the summary personally, on his laptop.

After the summary was read out, the topic registration and impounding of

documents was put to discussion. At the first place, definition of ‘duly stamped’

instrument, as provided under section 2(l) of was impressed upon. Thereafter the

procedure to impound documents was discussed and engrained with help of

landmark precedent in case of Shri Jayasingh Narayan Tupe versus Shri

Sambhaji Baburao Pawar and others, reported in 2013(3) Mh.L.J. 433. The

discussion accentuated upon principle that section 34 of Maharashtra Stamp Act,

1958 and section 49 of Registration Act, 1908 provide two embargos for

admissibility of a document. These are two tests which a document must pass,

prior to it is admissible in evidence.

Thereafter, recent civil pronouncements were discussed amongst all.

Those recent pronouncements on criminal side can be enlisted as

By Honourable Supreme Court

1. 2014 (6) Mh.L.J. 1 V. Kala Bharathi and others versus Oriental Insurance Company Limited, Branch Chintoor, On topic of Execution of Decree. Money decree with interests and costs - In absence of direction regarding mode of appropriation, Decree-Holder is entitled to appropriate amount deposited by Judgment-Debtor [which is less than decreetal amount] first towards interest, then costs and thereafter towards principal amount.

2. 2014 (6) Mh.L.J. 551 Annapurna versus Mallikarjun and another, On topic of Execution of Decree. Judgment-debtor having not deposited required amount for setting aside execution sale, within 60 days as prescribed under Article 127 of Limitation Act, executing Court does not have any option but to reject application for setting aside sale.

3. (2013) 14 SCC 722 Mata Prasad Mathur versus Jwala Prasad, On topic of Order XXII Rule 4 of CPC. In order to expedite process of law, Courts may exempt plaintiff from substituting LRs of a defendant who failed to appear or contest the suit.

By Honourable Bombay High Court

4. 2014 (6) Mh.L.J. 297 Yashwant Anant Fadte -deceased- Through Legal Representatives versus Shankar Raghu Fadte -deceased- and others,

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On topic of Effect of Deletion of Name: Deletion of name of respondent from appeal proceedings without bringing LRs on record, such order is illegal and against settled provisions of law. It deserved to be quashed and set aside.

5. 2014 (6) Mh.L.J. 553 Sahebrao Rama Yadav and others versus Sarjerao Rama Yadav, On topic of Boundary Dispute and Measurement: For measurement by Cadastral Surveyor, Notice to all concerned is necessary as it is mandatory provision under Maharashtra Land Revenue (Boundary and Boundary Marks) Rules 1969.

6. 2014 (6) Mh.L.J.767 Chhaya Anant Devkate versus NIL, On topic of Correction in Defective Plaint: Reasonable opportunity must be given to plaintiff to correct defects and to comply objections of Registry. [See: Chapter II Paragraph 12 of Civil Manual]

While discussing these pronouncements, the earlier views on the

respective subjects were also discussed. Then, the importance and bidingness of

these pronouncements were impressed upon.

The softcopies of these judgments were supplied to each participant

judge working in Wardha District. So, the discussion of facts and ratio of these

cases was useful, energetic and full of vigour.

Then, Mr. Vikesh Aasudani, [2nd Joint CJJD and JMFC, Samudrapur] had

read out the Summary on the selected criminal topic. In the discussion followed

thereto, many judicial officers had expressed views on the topic. Common

intention, Common object, Abetment and Criminal Conspiracy was discussed

with help of illustrative examples. The discussion in this segment was full of

enthusiasm and activity. Almost each one of the assembled judges has

contributed in the discussion about these concepts of vicarious liability.

In next segment of this workshop, following recent criminal

pronouncements were discussed.

By Honourable Supreme Court

1. (2014) 9 SCC 299 Raju alias Devendra Choubey versus State of Chhattisgarh, On Topic of Common Intention and Conspiracy: Common intention and Conspiracy are matters of inference. If while drawing an inference, any benefit of doubt creeps in,

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it must go to accused.

2. 2014 STPL (Web) 21 SC Hardeep Singh versus State of Punjab and others with another similar matters, [Full Bench] On section 319 of CrPC: Power to proceed against other persons appearing guilty of offence. Hon. Full Bench has explored the provision.

3. (2013) 14 SCC 653 Prem Kaur versus State of Punjab and others, On section 354 and 374 of CrPC: Non-speaking judgment is patent illegality. Adherance to provisions of section 354 is essential. In a criminal case, judgment must show application of judicial mind, points for determination, proper appreciation of evidence and reasons for decision and conclusion.

4. (2013) 14 SCC 461 Rajaram Prasad Yadav versus State of Bihar, On section 311 of CrPC: Paramount consideration should always be of just decision of case.

5. (2013) 14 SCC 434 Rohtash Kumar versus State of Haryana, On section 313 of CrPC: Need of explanatory statement of accused is expressed.

By Honourable Bombay High Court

6. 2014 (6) Mh.L.J. 707 Amit Satish Shah versus Archana Amit Shah and another, On Topic of PWDV Act 2005: Residence Order or any relief available under sections 18 to 22 of PWDV Act from Magistrate may also be sought in any legal proceedings before a Civil Court, Family Court or a Criminal Court, (with certain qualifications).

While discussing these pronouncements, the earlier views on the

respective subjects were also discussed. Then, the importance and bindingness

of these pronouncements were impressed upon.

Thereafter, practical problems and practical solutions for Case

Management were addressed by The Principal District and Sessions Judge,

Madam Vibha Kankanwadi.

Then, Ms. Anjali Khadse, [CJSD, Wardha] had expressed Vote of thanks. It

concluded the third and last workshop of judicial officers in Wardha District. Ms.

Ishrat Sheikh, [Joint CJJD, Wardha] had anchored this workshop.

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Provisions relating to Registration of documents under Registration Act:

Introduction:

1. The Registration Act, 1908 is having object of proper recording and registration

of documents/instruments, which give them more authenticity. Registration

means recording of the contents of a document with a Registering Officer, and

preservation of copies of original document. Documents are registered for the

purpose of conservation of evidence, assurance of title, publicity of documents

and prevention of fraud.

Object of Registration Act

2. The object of Registration and inter-alia Registration Act is elaborately

discussed by Honourable Supreme Court in case of Suraj Lamp and

Industries Pvt. Ltd. versus State of Haryana and Another,1 as under:

“The Registration Act, 1908, was enacted with the intention of

providing orderliness, discipline and public notice in regard to

transactions relating to immovable property and protection from fraud

and forgery of documents of transfer.”

…

“This is achieved by requiring compulsory registration of certain types

of documents and providing for consequences of non-registration.

Registration provides safety and security to transactions relating to

immovable property, even if the document is lost or destroyed. It gives

publicity and public exposure to documents thereby preventing

forgeries and frauds in regard to transactions and execution of

documents. Registration provides information to people who may deal

with a property, as to the nature and extent of the rights which persons

may have, affecting that property. In other words, it enables people to

find out whether any particular property with which they are

concerned, has been subjected to any legal obligation or liability and

who is or are the person/s presently having right, title, and interest in

the property. It gives solemnity of form and perpetuate documents

which are of legal importance or relevance by recording them, where

people may see the record and enquire and ascertain what the

particulars are and as far as land is concerned what obligations exist

with regard to them. It ensures that every person dealing with 1 AIR 2012 SC 206

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immovable property can rely with confidence upon the statements

contained in the registers (maintained under the said Act) as a full and

complete account of all transactions by which the title to the property

may be affected and secure extracts/copies duly certified. Registration

of documents makes the process of verification and certification of title

easier and simpler. It reduces disputes and litigations to a large extent.”

Registration of Document:

3. The documents registrable under the Act fall under three categories. In the first

category, documents relating to transactions which according to the

substantive law, can be effected only by registered documents. The

Registration Act does not lay down that any transaction in order to be valid

must be effected by a registered instrument only. What it provides is that when

there is a written instrument evidencing a transaction, it must, in certain cases,

be registered. Sales, Mortgages, Exchanges, Gifts and Leases under Transfer of

Property Act, 1882 are required to be effected only by registered instruments

subject to an exception in case of some transactions relating to immovable

property of less than ` 100/- in value. Under section 17 of the Registration Act,

the compulsorily registrable documents are given.

Maharashtra Amendment to Registration Act

4. There is Maharashtra State Amendment to Registration Act. The Registration

(Maharashtra Amendment) Act, 2010 is in force since 01st April 2013. The

Amendment has inserted section 89A in Registration Act. The relevant portion

of the section is

" 89A. Copies of court decrees, attachment orders, etc., to be sent to Registering

Officers and filed in registers.— (1) Every Court passing,--

(a) any decree or order creating, declaring, transferring, limiting or extinguishing

any right, title or interest to or in immovable property in favour of any person, or (b) an order for interim attachment or attachment of immovable property or for the

release of any immovable property from such attachment, shall, in accordance with the rules made in this behalf, send a copy of such decree or order

together with a memorandum describing the property as far as may be practicable, in the

manner required by section 21, to the registering officer within the local limits of whose

jurisdiction the whole or any part of the immovable property comprised in such decree or

order is situate, and such officer shall file the copy of the memorandum in his Book No. 1 :

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5. Due to this amended section, (i) any decree or order effecting an immovable

property or (ii) any order of attachment of immovable property (interim or

otherwise), or (ii) releasing any immovable property from any such

attachment, the Court passing such decree/order is required to send a copy of

such decree/order along with a memorandum describing attached/affected/

released property, to the registering officer (having jurisdiction over the

immovable property). This would mean that all ad-interim and interim orders of

attachment by any of the competent courts with respect to any immovable

property would be required to be registered. This procedure along with filing of

lis-pendence will ensure that innocent third party purchasers and interest of the

litigants are protected. As the responsibility to forward an order and register is

on the Court passing the decree/order and/or on the officer issuing sale

certificate/written demand, there is no time limit prescribed for the same, nor

is any penalty prescribed for non-filing. This is done with a view to further

strengthen the recovery proceedings initiated under appropriate court of law.

Hence no property, immovable or movable, for which a sale certificate has

been issued, any of the competent court or office including, can be dealt with

by the property owner to evade payment of dues as decreed by the competent

court.

6. Documents which fall under the second category: Certain transactions can be

effected without writing, i.e. partitions, releases, settlements etc. But, if the

transaction is evidenced by a writing and relates to immovable property, the

Registration Act steps in and clauses (b) and (c) of Section 17(1) of said Act

require registration of such documents, subject to the exception specified in

sub-section 2 of that section. If an authority to adopt is conferred in writing,

other than a Will, it is also required to be registered vide section 17(3).

7. Documents which fall under the third category: It is open to the parties, if they

so choose, to get certain documents registered at their option and this is

permitted by section 18. ‘Will’ need not be registered but it is open to the

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parties to get it registered under the third category.

Limitation for registration of a document:

8. Limitation for registration of a document under section 23 of the Act, subject to

certain exceptions, any document other than a Will has to be presented for

registration within four months from the date of its execution. The term

‘execution’ means signing of the agreement. Under the present rules and

regulations, all agreements in respect of a transfer for a premises or an

immovable property have to be duly stamped, under the provisions of the

Bombay Stamp Act, 1958 before the document is presented for registration.

9. Section 17 deals with documents of which registration is compulsory. Whereas,

sub-Section (2) of section 17 provides a dozen of exceptions to clause (b) and

(c) of section 17(1). Section 18 of Registration Act pertains to documents of

which registration is optional. Word ‘may’ is used in textual of section 18.

Section 49 of Registration Act consists of two parts. First is “that no document,

required by section17 or by provision of Transfer of Property Act to be

registered, shall affect any immovable property compromised therein”.

Secondly, “shall not be received as evidence of any transaction affecting such

property” i. e. “the immovable property comprised therein”. The first part

presupposes that the document itself is the transaction or the mode in which it

is carried out. The second part relates to cases where the document itself is the

transaction but is only the record of a transaction, or being itself a transaction,

contains a reference to, or recital of, another transaction which affects the

immovable property comprised therein. This section must be read together

with section 17 and section 91 of Evidence Act, a fair interpretation of section

49 does not preclude an unregistered document, which is required by law to be

registered from being given in evidence as to the terms of a contract of sale.

10. An unregistered deed is admissible in evidence to prove an admission therein

that some of the properties covered by it are self-acquisition of the executant.

This section lays down a rule of substantive law, but the proviso embodies a rule

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of evidence. All that the proviso, permits is that, in a suit for specific

performance an unregistered document affecting immovable property may be

given in evidence. The object is that the document which has not conveyed or

passed a title may be used as evidence of the terms. Though the instrument is

not admissible for the purpose of proving a concluded transaction transferring

an interest, yet it can be received in evidence for collateral purposes. It was

pointed out in Bai Gulabbai v/s. Dattagarji,2 that collateral purpose is any

purpose other than of creating, declaring, assigning, limiting or extinguishing a

right to immovable property. Thus, if the unregistered document is not to be

relied upon and if terms of the disposition of the property embodied in that

document are not sought to be proved by other evidence the bar of section

49(c) or section 91 Evidence Act will not apply. Only oral evidence in proof of

the terms of the contract under section 91 of Evidence Act can be given.

What is Collateral purpose?

11. Under the proviso to Section 49 of the Registration Act, an unregistered

document can also be admitted into evidence for a collateral fact/collateral

purpose. In Ratan Lal and others versus Harisankar and others,3 while

discussing the meaning of the term "Collateral Purpose", Honourable Allahabad

High Court has observed as follows:-

"The second contention was that the partition deed, even if it was not

registered could certainly be looked into for a collateral purpose, but

the collateral purpose has a limited scope and meaning. It cannot be

used for the purpose of saying that the deed created or declared or

assigned or limited or extinguish the right to immovable

property ..........term collateral purpose would not permit the party to

establish any of these acts from the deed."

12. In the case of Bajaj Auto Limited versus Behari Lal Kohli,4 Honourable

Supreme Court observed that if a document is inadmissible for non-registration,

all its terms are inadmissible including the one dealing with landlords

2 [9 Bom L. R.393]

3 AIR 1980 Allahabad 180

4 AIR 1989 SC 1806

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permission to his tenant to sub-let. It was also held in said decision that if a

decree purporting to create a lease is inadmissible in evidence for want of

registration, none of the terms of the lease can be admitted in evidence and

that to use a document for the purpose of proving an important clause in the

lease is not using it as a collateral purpose.

13. Again in Rai Chand Jain Vs. Chandra Kanta Khosla,5 the above principle was

reiterated and in paragraph 10 it was observed as under:-

"It is well settled that unregistered lease executed by both the parties

can be looked into for collateral purposes. In the instant case the

purpose of the lease is evident from the deed itself which is as follows:

"The lessor hereby demises House No. 382, Sector 30-A, Chandigarh, to

lessee for residential purposes only". This clearly evinces that the

property in question was let out to the tenant for his residence only...."

14. In the case of Rana Vidya Bhushan Singh versus Ratiram,6 the following

has been laid down:

"A document required by law to be registered, if unregistered, is

inadmissible as evidence of a transaction affecting immovable property,

but it may be admitted as evidence of collateral facts, or for any

collateral purpose, that is for any purpose other than that of creating,

declaring, assigning, limiting or extinguishing a right to immovable

property. As stated by Mulla in his Indian Registration Act, 7th Edition

at page 189:

"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna,

Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu

& Kashmir; the former Chief Court of Oudh; the Judicial Commissioners

Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme

Court have held that a document which requires registration under

Section 17 and which is not admissible for want of registration to prove

a gift or mortgage or sale or lease is nevertheless admissible to prove

the character of the possession of the person who holds under it."

15. From the principles laid down in the various decisions, it is evident that:

a. A document required to be registered is not admissible into evidence under

5 AIR 1991 SC 747

6 1969 (1) UJ 86 (SC)

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Section 49 of the Registration Act.

b. Such unregistered document can however be used as an evidence of

collateral purpose as provided in the Proviso to Section 49 of the

Registration Act.

c. A collateral transaction must be independent of, or divisible from, the

transaction to effect which the law required registration.

d. A collateral transaction must be a transaction not itself required to be

effected by a registered document, that is, a transaction creating, etc. any

right, title or interest in immoveable property of the value of one hundred

rupees and upwards.

e. If a document is inadmissible in evidence for want of registration, none of its

terms can be admitted in evidence and that to use a document for the

purpose of proving an important clause would not be using it as a collateral

purpose.

Conclusion:

16. The Registration Act, unlike the Transfer of Property 1882, strikes only at

documents, and not at transactions. In the same way, the Registration Act does

not require that every transaction affecting immovable property should be

carried out only through a registered instrument. All that it enacts is that when

a document is employed to effectuate any of the transaction specified in s.17 of

the Registration Act, such document must be registered.

---0---

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IMPOUNDING OF DOCUMENTS:

17. The object of the Bombay Stamp Act, 1958 *now known as Maharashtra Stamp

Act, 1958, and henceforth referred to as ‘Stamp Act’+ is to collect proper stamp

duty on an instrument or conveyance on which such duty is payable. The stamp

duty is imposed upon the instruments and not upon the transaction. For

charging stamp duty, the instrument is not to be treated by the name it bears

but by the substance or real nature of the transaction recorded therein. The

instruments or documents have to be read as they are i. e. as they are worded

or drafted. There is nothing illegal to adopt a method in effecting a transaction

so as to reduce or lessen the liability of stamp duty. A document which is not

stamped, though required to be stamped or is under stamped, is not by that

reason, invalid as between the parties.

18. ‘Impound’ means ‘to keep in custody of the law’. There must be some distinct

action which will show that documents or things have been impounded.

According to Oxford Dictionary "impound" means to take legal or formal

possession. Production, impounding and return of documents is considered

under Order XIII of the Code of Civil Procedure, 1908. Original documents to be

produced at or before the settlement of issues, is a mandate of Sub-rule (1) of

Order XIII of the Code of Civil Procedure. Sub-rule (2) obligates the Court to

receive the documents so produced. It is this stage, of admitting the documents

in evidence by the Court. Rule 8 of Order XIII refers to order by the Court for

impounding any document.

19. It is provided that the Court may, if it sees sufficient cause, direct any document

or book produced before it in any suit to be impounded and kept in the custody

of an officer of the Court, for such period and subject to such conditions as the

Court thinks fit. Rule 8 of Order XIII starts with the non-obstante clause in

relation to Rule 5 or Rule 7 or Rule 17 of Order VII. Thus, power to impound the

document and impounding of such document is provided under Order XIII Rule

8 of the Code of Civil Procedure.

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‘Instruments not duly stamped’

20. Chapter IV of Stamp Act deals with ‘Instruments not duly stamped’. The Chapter

comprises of section 3 to 46. Section 33 provides for examination and

impounding of such instruments. Section 33(1) of the Stamp Act states that

every person having by law or consent of parties authority to receive evidence,

and every person in charge of a public office, except an officer of police, before

whom any instrument, chargeable, in his opinion, with duty, is produced or

comes in the performance in his functions shall, if it appears to him that such

instrument is not duly stamped, impound the same. Perusal of the above

provision shows that when a document is produced (or comes in the

performance of his functions) before a person who is authorized to receive

evidence and a person who is in charge of a public office (except a police

officer) before whom any instrument chargeable with duty is produced or

comes in the performance of his functions, it is the duty of such person before

whom the said instrument is produced to impound the document if it is not

duly stamped. The use of the word ‘shall’ in Section 33(1) shows that there is

no discretion in the authority mentioned in Section 33(1) to impound a

document or not to do so.

21. Section 37 of Stamp Act lays down the manner of dealing with instruments

which have been impounded. If the person impounding the document has the

authority to receive evidence and admits the instrument in evidence on

payment of penalty or duty, he has to follow the procedure laid down in sub-

section (1). In other cases, procedure laid down in subsection (2) is to be

followed.

22. In the case of Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao &

others,7 Honourable Supreme Court had an occasion again to consider the

scope and ambit of Sections 33(1), 35 and 36 of the Act and Section 63 of the

Indian Evidence Act and observed as under:

7 AIR 1971 SC 1070

Page 10 of 34

“13. The first limb of Section 35 clearly shuts out from evidence any

instrument chargeable with duty unless it is duly stamped. The second

limb of it which relates to acting upon the instrument will obviously

shut out any secondary evidence of such instrument, for allowing such

evidence to be let in when the original admittedly chargeable with duty

was not stamped or insufficiently stamped, would be tantamount to the

document being acted upon by the person having by law or authority to

receive evidence. Proviso (a) is only applicable when the original

instrument is actually before the Court of law and the deficiency in

stamp with penalty is paid by the party seeking to rely upon the

document. Clearly secondary evidence either by way of oral evidence of

the contents of the unstamped document or the copy of it covered by

Section 63 of the Indian Evidence Act would not fulfill the requirements

of the proviso which enjoins upon the authority to receive nothing in

evidence except the instrument itself. Section 35 is not concerned with

any copy of an instrument and a party can only be allowed to rely on a

document which is an instrument for the purpose of Section 35.

“Instrument” is defined in Section 2(14) as including every document by

which any right or liability is, or purports to be created, transferred,

limited, extended, extinguished or recorded. There is no scope for

inclusion of a copy of a document as an instrument for the purpose of

the Stamp Act.

14. If Section 35 only deals with original instruments and not copies

Section 36 cannot be so interpreted as to allow secondary evidence of

an instrument to have its benefit. The words an instrument in Section

36 must have the same meaning as that in Section 35. The legislature

only relented from the strict provisions of Section 35 in cases where the

original instrument was admitted in evidence without objection at the

initial stage of a suit or proceeding. In other words, although the

objection is based on the insufficiency of the stamp affixed to the

document, a party who has a right to object to the reception of it must

do so when the document is first tendered. Once the time for raising

objection to the admission of the documentary evidence is passed, no

objection based on the same ground can be raised at a later stage. But

this in no way extends the applicability of Sec.36 to secondary evidence

adduced or sought to be adduced in proof of the contents of a document

which is unstamped or insufficiently stamped.”

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23. From the above, it is clear that an instrument which is not duly stamped can be

impounded and when the required fee and penalty has been paid for such

instrument it can be taken in evidence under Section 35 of the Stamp Act.

Sections 33 or 35 are not concerned with any copy of the instrument and party

can only be allowed to rely on the document which is an instrument within the

meaning of Section 2(14). There is no scope for the inclusion of the copy of the

document for the purposes of the Indian Stamp Act. Law is now no doubt well

settled that copy of the instrument cannot be validated by impounding and this

cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.

24. To attract the provisions to impound, three conditions must be fulfilled (1) the

authority empowered to impound a document must be the authority specified

therein, (2) the instrument is not stamped according to this Act, (3) the

instrument is produced or comes before him in the performance of his

functions. The power to impound document can only be exercised by the Court

or other officers, while recording evidence or performing their duties, the

document is produced or comes before it or them. The production of the

document must be for the purpose of the case or for performing any function in

regard to such document.

25. Doctrine of ‘functus officio’ – The power of impounding the document which

is not duly stamped can be exercised by the Judge or other officer only in

respect of a document which is produced or comes before him in the

performance of his functions. If such document is not impounded before the

decision of the suit or case or the function in respect of that document is over,

as the Judge or the officer, ceases to be functus officio, he cannot, thereafter

impound the document. Similarly a Sub-Registrar also cannot impound the

document after it is registered. A document presented to the Collector under

section 31 for opinion cannot be impounded.

26. A conjoint reading of the above sections makes it clear that Section 34 of the

Act only prohibits the admissibility of instruments not duly stamped in evidence

Page 12 of 34

except on payment of the amount required to make up the proper stamp duty

and the penalty specified therein. Section 33 is intended to achieve a different

object altogether. It has been incorporated to safeguard the revenue of the

State. It mandates every person specified therein before whom any instrument

chargeable with duty is produced or comes in performance of his functions to

impound the same if he is satisfied that such an instrument is not duly

stamped. For that purpose, he has been given the power to examine the

instrument so produced or coming up before him in order to ascertain whether

it is stamped with a stamp of the value and description described by the law.

The fact that the instrument is or is not valid in law is not relevant for the

purpose of impounding the same. Under Section 37 such impounded document

has to be sent to the Collector for the purpose of taking action as contemplated

in sub-section (2) thereof. If the document has been admitted in evidence on

payment of duty and penalty provided in Section 34 the authority concerned

may follow the procedure laid down in sub-section (1). In other cases the

procedure laid down in sub-section (2) has to be followed and authenticated

copy of the instrument from the court has to be forwarded to the Collector for

appropriate action.

Procedure for impounding:-

27. In Shri Jayasingh Narayan Tupe versus Shri Sambhaji Baburao Pawar

and others,8 it has been observed that,

“if the possession of immovable property is handed over in the

document styled as agreement to sell, then it requires requisite stamp

as per the Act. Further, if the delivery of possession is to take place on

the execution of the sale deed then such an agreement would not be

covered by the Explanation I to Article 25…. However, the Trial Court

thereafter erred in not impounding the document under Section 33 of

the Bombay Stamp Act and sending it to the Collector for adjudication

but has merely recorded that since the document is improperly

stamped, it cannot be read in evidence. To that extent, the impugned

8 2013(3) MhLJ 433,

Page 13 of 34

order would have to be set aside and is accordingly set aside and the

Trial Court is directed to impound the said document and send it to the

Collector for adjudication. It is only after the document is adjudicated

upon for the payment of stamp duty and in the event the stamp duty is

paid, that the Plaintiff can apply to the Trial Court for the document to

be read in evidence”.

Section 49 of Registration Act & Section 34 of Stamp Act:

28. If any instrument, which requires compulsory registration, is not registered and

is in-sufficiently stamped, then there applies two legal embargos to admit it in

evidence. First embargo is section 34 of Stamp Act which provides that, no

instrument chargeable with stamp-duty shall be admitted in evidence, unless

such instrument is duly stamped. Such embargo of insufficiently stamped

instrument can be cleared by impounding of such instrument and by recovering

the deficit stamp-duty along with penalty. As soon as such embargo is cleared,

such instrument can be admitted in evidence, but, subject to clearance of

second embargo. Now, the second embargo is section 49 of Registration Act,

which provides that, no document required by section 17 or by any provision of

Transfer of Property Act, 1882, to be registered shall (i) affect any immovable

property comprised therein, or (ii) confer any power to adopt, or (iii) be

received as evidence of any transaction affecting such property or conferring

such power, unless it has been registered.

29. Therefore, unless an instrument which requires compulsory registration under

provisions of law is registered, it cannot be received as evidence of such

transaction and it will not affect any immovable property, whose transaction is

entered into it. Under such situation, unregistered and insufficiently stamped

instrument which requires compulsory registration, can be admitted or

received in evidence and will affect the immovable property, only after its

impounding as well as registration. If any such instrument is merely impounded

but not got registered, then, only the first embargo will be cleared, but not

second. Therefore, unless both embargos supra are cleared, such instrument

Page 14 of 34

cannot be admitted in evidence and cannot affect the status of any immovable

property.

Relevant Date for Levying penalty:

30. It is frequently asked question [FAQ] in respect of impounding of document as

to which date is to be considered for levying penalty on insufficiently stamped

document. Honourable Bombay High Court has observed in case of Krishna

Sheena Shetty versus Suresh Anant Sawant & Another,9 that,

“for payment of the stamp duty, the date of execution of the instrument

would be a relevant and for levying the penalty the date when such

instruments in Section 34 (a) (ii) is concerning penalty.”

31. It must be mentioned that in Hemendra Rasiklal Ghia versus Subodh

Modi,10 it has been held that the objection as regards whether the document

is sufficiently stamped or not will have to be decided as soon as it is raised. It

cannot be postponed.

32. Opportunity to pay deficiency to be given- Persons producing instrument not

duly stamped is not required by law to deposit at the same time the amount of

stamp and penalty required. After the Court decides that the document is

insufficiently stamped, the Court should give opportunity to pay the amount of

stamp duty and penalty. The court cannot without giving such opportunity hold

that the document is inadmissible and reject it from evidence. When the

plaintiff has shown his willingness to pay the amount, even in appeal the

document will be admitted in evidence.

33. Liability to pay duty and penalty- Mere production of an unstamped document

does not enable the Court to levy duty and penalty. It is only when the party to

the suit or proceeding wants it to be admitted in evidence; the Court can levy

duty and penalty. As to liability of payment of stamp and penalty, in Marine

Container Services v/s. Rajesh,11 it has been held that,

9 2008 (4) AIR Bom. R. 440

10 2008(6) MhLJ 886

11 2001(4) MhLJ 353

Page 15 of 34

“At the interim stage as the document was on stamp paper, it could not

be brushed aside on the ground that it was insufficiently stamped and

the Court could not decline interim relief or Court cannot at the stage of

considering the application for interim relief be stopped in its track

unless it first considers the question whether the document is

sufficiently stamped or not. If the document is found to be insufficiently

stamped, when the document is produced for being admitted in

evidence, the Court can impound the document and recover the

required stamp duty”.

34. In Santosh v/s. Pukharaj,12 it has been held that,

“When a document is sought to be tendered in evidence before the

Court, if it is found that the document/instrument is not sufficient

stamped, it is the duty of the Court to impound the said document in

accordance with section 33 of the Bombay Stamp Act. No power is

conferred on the court to determine the stamp duty chargeable in

respect of any instrument. The said power is vested in the Collector.

Jurisdiction of the Civil Court is confined to recording a finding on the

question whether an instrument is duly stamped. The Civil Court cannot

determine the stamp duty payable on a particular instrument. After

impounding the document, the Court is under an obligation to send a

true copy of the said document to the adjudication of the Collector in

accordance with sub-section(3) of section 32-A of the said Act. Only

after adjudication is made by the Collector, the party relying upon the

document will have to pay deficit stamp duty and penalty. After a

certificate issued by the Collector regarding compliance with the

requirement of payment of deficit stamp duty and penalty, Civil Court

can exercise power under proviso (a) to section 34 of the said Act.

Thereafter, the document can be admitted in evidence if the same is

proved and if it is otherwise admissible in evidence. There is nothing

wrong if a party relying upon a document applies for impounding his

own document to enable the Court to exercise power under proviso (a)

to section 34. In the present case, though the trial Court was justified in

impounding the document, further exercise made by the trial Court of

determining of deficit stamp duty and penalty is without jurisdiction

and to that extent, impugned order will have to be modified”.

35. In Gayabai v/s. Hiraman,13 it has been held that

12

2010(4) Mh.L.J. 22 (Bom) 13

2011(4) MhLJ 798

Page 16 of 34

“Photocopy of the document cannot be termed as an ‘instrument’

within the meaning of section 2(14) of the Indian Stamp Act, 1899 or

section 2(l) of the Stamp Act, 1958 and the provisions of Section 33 of

the Stamp Act cannot be made applicable in respect of copy of the

document.”

36. Section 35 of Stamp Act becomes applicable only after an instrument is

admitted in evidence. Thereafter, the instrument has to be acted upon as a

document duly stamped. Once a document is admitted rightly or wrongly in

evidence, it is not permissible to the Court at subsequent stage, whether it is

court of appeal, or revision or trial Court, to reject it as not duly stamped. If the

document after admission in evidence is discovered to be insufficiently

stamped, then the only course is, to take action under section 58, calling upon

the party to pay duty and penalty, but the decree based on such document will

stand. The word ‘instrument’ in section 35 means original instrument. Not duly

stamped document, once admitted in evidence, its admissibility cannot be

questioned. If the Court in appeal, however, finds that the document admitted

in evidence is not duly stamped, or chargeable to duty, it may record a

declaration and determine the amount of duty and penalty impound the

instrument and send it to the Collector. Section 35 of Stamp Act is in the nature

of a penal provision and has far-reaching effects. But so far the suit is

concerned; the decree passed on the basis of insufficiently stamped instrument

will be confirmed. In Javer Chand v/s. Pukhraj Surana,14 it has been held

that,

“Where an instrument has been admitted in evidence, such admission

shall not, except as provided in section 61, be called in question at any

stage of the same suit or proceeding on the ground that the instrument

has not been duly stamped.”

Conclusion:

37. Therefore, it can be concluded that an unregistered document is weak kind of

evidence. It can be used as collateral evidence. An unregistered document is

14

AIR 1961 SC 1655

Page 17 of 34

liable to be impounded by the Court before which it is presented as evidence.

After completion of process of impounding of document, the document can be

read in evidence. The testimony of the witness on the said document shall start

after undertaking said entire procedure. Merely exhibiting a document does

not serve any purpose, no matter, whether it is unregistered or a registered

document.

---0---

Page 18 of 34

Common intention, Common Object, Abetment and Conspiracy:

Introduction:

39. Generally and ordinarily the person, who actually commits the offence is

considered as the offender. However, there are instances showing that apart

from the real offender, some other one also works for commission of an

offence and his act may be direct or indirect. Bearing in mind the involvement

of such other person in commission of an offence, provisions have been made

in the Indian Penal Code (to be terse, hereinafter referred to as ‘IPC’) to punish

such other person. In IPC, there are terms like ‘Common Intention’, ‘Abetment’,

‘Conspiracy’ and ‘Common Object’. They are found respectively in sections 34,

109, 120-B and 149 of the IPC. Though they have same pivotal point, still they

have distinct periphery. These concepts are interlaced with each other. To

understand them, it is necessary to explore them, one by one.

Common Intention; section 34 of IPC:

40. Oxford Dictionary provides meaning of ‘intention’ as ‘conceptions formed by

directing the mind towards an object as aim or plan’. New Webster’s

dictionary defines intention as ‘determination about an action or result’. In

Iyer’s Judicial Dictionary, meaning of intention is provided as ‘fixed direction of

the mind to particular object or a determination to act in a particular

manner’. So, intention relates to the capacity of the mind to refer to different

kinds of objects. It is the resolve or design with which a person does or refrains

from doing an act.

41. The general rule in the criminal law is that there is no vicarious liability. This

reflects the general principle that a crime is composed of both an actus reus

(the Latin tag for ‘guilty act’) and a mens rea (the Latin tag for ‘guilty mind’).

Another principle is that a person should only be convicted if he or she is

directly responsible for causing both elements to occur at the same time. This

section 34 of IPC is intended to meet cases in which it may be difficult to

distinguish the acts of the individual member of a party or to prove exactly

Page 19 of 34

what part was taken by each of them in furtherance of common intention of all.

It is an intention to commit the crime actually committed and each accused can

be convicted of that crime only, if he has participated in the commission of the

offence with the intention to commit the actual crime which was committed.

42. To constitute common intention, it is necessary that the intention of each one

of them was known to the rest of them and was shared by them. The test to

decide if the intention is common is to see whether the intention of one was

known to the other and shared by that other. The true rule of law which is to be

applied is the rule which requires that guilt is not to be inferred unless that is

the only inference which follows from the circumstances of the case and no

other innocuous inference can be drawn.

43. Section 34 has been enacted on the principle of joint liability in the doing of a

criminal act. Section 34 is only a rule of evidence and does not create a

substantive offence, i.e. a distinct offence. It means that if two or more persons

intentionally do a thing jointly, it is just the same as if each of them has done it

individually. The common intention requires a prior concert or a pre-planning. It

is the intention to commit the crime and the accused can be convicted only if

such an intention has been shared by all the accused. Such a common intention

should be anterior in point of time to the commission of the crime, but may

also develop at the instant when such crime is committed. The distinctive

feature of the section is the element of participation in action. The liability of

one person for an offence committed by another in the course of criminal act

perpetrated by several persons arises under Section 34 if such criminal act is

done in furtherance of a common intention of the persons who join in

committing the crime.

44. Direct proof of common intention is seldom available and, therefore, such

intention can only be inferred from the circumstances appearing from the

proved facts of the case and the proved circumstances. Many times, confusion

occurs about two terms; ‘similar intention’ and ‘common intention’. There is

Page 20 of 34

very thin line of demarcation in between these two concepts. Privy Council and

Honourable Supreme Court of India had dealt with this distinction. In case of

Mehboob Shaha versus Emperor,15 it has been observed that,

“Care must be taken not to confuse same or similar intention with

common intention; the partition which divides their bounds is often

very thin. Nevertheless the distinction is real and substantial and if

overlooked will result in miscarriage of justice.”

45. Explaining the difference between two concepts; Honourable Apex Court in the

case of Pandurang versus State of Hyderabad,16 observed that,

“Several persons can simultaneously attack a man and each can have

the same intention, namely the intention to kill and each can

individually inflict a separate fatal blow and yet none would have the

common intention required by the section because there was no plan. In

a case like that, each would be individually liable for whatever injury he

caused but none could be vicariously convicted for the act of any of the

others and if the prosecution cannot prove that his separate blow was a

fatal one he cannot be convicted of the murder however clearly an

intention to kill could be proved.”

46. It is difficult to prove charge under this section. It can be proved from the

circumstance of the case, manner in which the act has been committed, part

played by each of the accused, etc. The object of the charge is to warn the

accused person of the case he is to answer. Therefore, omission to mention

section 34 in the charge cannot affect the case unless prejudice is shown to

have resulted in consequence thereof.

47. Facts to be necessarily proved:

a. That there was the meeting of all accused prior to the incident.

b. That all the persons who participated in the said meeting held on particular

date and place intended to commit the crime.

c. That all the accused participated in the commission of crime.

d. That criminal act was accordingly done.

15

AIR 1945 Privy Council 118. 16

AIR 1955 SC 216

Page 21 of 34

48. In order to bring home the charge of common intention, the prosecution has to

establish by evidence, whether direct or circumstantial, that there was plan or

meeting of minds of all the accused persons to commit the offence for which

they are charged with the aid of Section 34. Be it prearranged or on the spur of

moment; but it must necessarily be before the commission of the crime. The

existence of a common intention amongst the participants in a crime is the

essential element for application of this section. It is not necessary that the acts

of the several persons charged with commission of an offence jointly must be

the same or identically similar. The acts may be different in character, but must

have been actuated by one and the same common intention in order to attract

the provision.

49. The Section does not say “the common intentions of all”, nor does it say “an

intention common to all”. Under the provisions of Section 34 the essence of the

liability is to be found in the existence of a common intention animating the

accused leading to the doing of a criminal act in furtherance of such intention.

As a result of the application of principles enunciated in Section 34, when an

accused is convicted under Section 302 read with Section 34, in law it means

that the accused is liable for the act which causes death of the deceased in the

same manner as if it was done by him alone. The provision is intended to meet

a case in which it may be difficult to distinguish between acts of individual

members of a party who act in furtherance of the common intention of all or to

prove exactly what part was taken by each of them. Section 34 is applicable

even if no injury has been caused by the particular accused himself. For

applying Section 34 it is not necessary to show some overt act on the part of

the accused.

50. Thus, the practice of holding one person liable for the actions of another is the

exception and not the rule in criminal law. In other words, vicarious liability

assigns guilt, or criminal liability, to a person, for wrongful acts committed by

someone else. Vicarious or constructive liability can arise only where two

Page 22 of 34

conditions are fulfilled, (i) the mental element called the intention to commit

the criminal act conjointly with another and others, (ii) actual participation in

one form or the other in the commission of the offence. To convict an accused

under section 34 of IPC, it should be proved that the criminal act was done in

concert, pursuant to the prearranged plan. The dominant feature of this section

is the element of participation in action in or the other form. It need not be by

physical presence, common consent implies acting in consent.17

51. The first leading case in the point is Barendra Kumar Ghosh versus King

Emperor.18 It is also known as Shankari Tola Post Office Murder case. In this

case several persons appeared before the Sub-post master who was counting

the money on the table and demanded the money. In the meantime they

opened fire, killed the sub-post master and ran away without taking any

money. Barendra Kumar was, however, caught with a pistol in his hand and was

handed over to the police. The accused was tried under section 302 read with

34 as according to the prosecution he was one of the three men who fired at

the Sub-post master. The accused denied his charge on the ground that he was

simply standing outside and had not fired at the deceased. The trial court, on

being satisfied that the sub-post master was killed in furtherance of the

common intention of all, convicted the accused even if he had not fired the

fatal shot. Honourable High Court of Calcutta and the Privy Council both agreed

with the findings of the trial court and held the accused guilty of murder. Giving

his judgment LORD SUMNER quoting a line from Milton's famous poem, “ON

HIS BLINDNESS” said,

“even if the appellant did nothing as he stood outside the door, it is to

be remembered that in crimes as in other things they also serve who

only stand and wait.”

52. Thereafter, in Hardev Singh versus State of Punjab,19 it has been held that,

17

See: AIR 1970 SC 1266 and AIR 1980 SC 879 18

AIR 1925 Privy Council 1. 19

AIR 1975 SC 179

Page 23 of 34

“The view of the High Court that even the person not committing the

particular crime could be held guilty of that crime with the aid of

Section 34 of the Penal Code if the commission of the act was such as

could be shown to be in furtherance of the common intention not

necessarily intended by every one of the participants, is not correct. The

common intention must be to commit the particular crime,

although the actual crime may be committed by any one sharing

the common intention. Then only others can be held to be guilty”.

53. Thus what proposition follows from Section 34 is that the foundation of

constructive liability is the common intention of all and that common intention

is an intention to commit a crime actually committed and every one of the

accused should have participated in that intention, not only in design, but also

in action.

Common Object; section 149 of IPC:

54. Meaning of ‘object’ as per Oxford Dictionary is ‘a person or thing to which an

action or feeling is directed’ Collins dictionary provides meaning of object as ‘a

focus or target for feelings or an aim or purpose’. In legal parlance, intention

and object have their own distinctive features. In Maranadu and another

versus State by Inspector of Police, Tamil Nadu,20 it has been held that:

‘Common object' is different from `common intention' as it does not

require a prior concert and a common meeting of minds before the

attack. It is enough if each has the same object in view and their

number is five or more and that they act as an assembly to achieve that

object. The `common object' of an assembly is to be ascertained from

the acts and language of the members composing it, and from a

consideration of all the surrounding circumstances. It may be gathered

from the course of conduct adopted by the members of the assembly.

For determination of the common object of the unlawful assembly, the

conduct of each of the members of the unlawful assembly, before and at

the time of attack and thereafter, the motive for the crime, are some of

the relevant considerations. What was the common object of the

unlawful assembly is at a particular stage of the incident is essentially a

question of fact to be determined, keeping in view the nature of the

assembly, the arms carried by the members, and the behaviour of the 20

2008 (12) SCALE 420

Page 24 of 34

members at or near the scene of the incident. It is not necessary under

law that in all cases of unlawful assembly, with an unlawful common

object, the same must be translated into action or be successful. Under

the Explanation to Section 141, an assembly which was not unlawful

when it was assembled may subsequently become unlawful. It is not

necessary that the intention or the purpose, which is necessary to

render an assembly an unlawful one comes into existence at the outset.

The time of forming an unlawful intent is not material. An assembly

which, at its commencement or even for some time thereafter, is lawful,

may subsequently become unlawful. In other words it can develop

during the course of incident at the spot."

55. Section 149 of IPC creates a vicarious liability for the unlawful acts committed

pursuant to the common object by any other member of the assembly. The

basis of such constructive liability is mere membership of such assembly with

the requisite common object or knowledge. Therefore, once the court holds

that certain accused persons formed an unlawful assembly and an offence is

committed by any member of that assembly in prosecution of the common

object of that assembly, or such as the member of that assembly knew to be

likely to be committed in prosecution of that object, every member of that

unlawful assembly is to be held guilty of that offence. After such a finding it

would not be open to the court to see who actually did the offensive act or

require the prosecution to prove which of the members did the offensive acts.21

When an offence is committed in prosecution of the common object, it would

generally be an offence which the members of the unlawful assembly knew was

likely to be committed in prosecution of the common object. The word “knew”

used in the second branch of the section implies something more than a

possibility and it cannot be made to bear the sense of “might have been

known”. Positive knowledge is necessary. The distinction between two parts of

section 149 of IPC cannot be ignored or obliterated.

56. In every case it would be an issue to be determined, whether the offence

committed falls within the first part or it was an offence such as the members

21

See: Lalji V. State of U. P., AIR 1989 SC 754.

Page 25 of 34

of the assembly knew to be likely to be committed in prosecution of the

common object and falls within the second part. Common object of an unlawful

assembly has to be inferred from facts and circumstances disclosed. A common

object may be formed by express agreement after mutual consultation, but

that is by no means necessary, it may be formed at any stage by all or few

members of the assembly and the other members may just join and adopt it.

Once formed, it need not continue to be the same. It may be modified or

altered or abandoned at any stage. Though no hard and fast rule can be culled

out, it may be reasonably collected from the nature of the assembly, arms it

carries and behaviour at or before or after the scene of incident.

57. Elements Of Section 149: The essence of offence under Section 149 is assembly

of several (five or more) persons having one or more of the common objects

mentioned in Section 141. Section 149 creates joint liability of all members of

an unlawful assembly for criminal act done by any member in prosecution of

the common object of the said assembly. So the essential ingredients of Section

149 are:

a. There must be an unlawful assembly, as defined in Section 141;

b. Criminal act must be done by any member of such assembly;

c. Act done is for prosecution of the common object of the assembly or such

which was likely to be committed in prosecution of the common object;

d. Members have voluntarily joined the unlawful assembly and knew the

common object of the assembly.

e. Mere presence and sharing of common object of the assembly makes a

person liable for the offence committed even if he had no intention to

commit that offence.

58. The words ‘in prosecution of the common object’ show that the offence

committed was immediately connected with the common object of the

unlawful assembly of which accused were members. The act must have been

done with a view to accomplish the common object of the unlawful assembly.

Page 26 of 34

In Queen v. Sabid Ali,22 the words ‘in prosecution of the common object’ were

construed as meaning ‘with a view to achievement of the common object’.

Honurable Supreme Court of India has explored and explained concept ‘in

prosecution of the common object’ in case of Ram Chandran and others

versus State of Kerala,23 as,

“The words ‘in prosecution of the common object’ do not mean ‘during

the prosecution of the common object of the assembly’. It means that

the offence committed was immediately connected with the common

object of the assembly or the act is one which upon the evidence

appears to have been done with a view to accomplish a common object

attributed to the members of the assembly. These words are to be

strictly construed as equivalent to “in order to attain common object.”

59. The presence of the accused as a part of unlawful assembly is sufficient for his

conviction. Specific overt act is not required to be established. Honourable

Supreme Court has discussed this legal position in respect of the several

categories of cases which may fall to be tried when charge under Section 149 is

to be framed, in the matter of Mohan Singh and another Vs. State of

Punjab24.

60. Thus, the proposition, which can be drawn, is that under Section 149, though

an offence is committed by any member of an unlawful assembly of five or

more persons in prosecution of the common object of the assembly, then each

of the members of the unlawful assembly irrespective of the participation in

the commission of the act shall be constructively liable for the act.

Abetment; section 107, 109 and 114 IPC:

61. Abetment is constituted by (i) instigating a person to commit an offence; or (ii)

engaging in a conspiracy to commit it; or (iii) intentionally aiding a person to

commit it.

62. Abetment by instigation-First clause- A person is said to 'instigate' another to

an act, when he actively suggests or stimulates him to the act by any means of 22

11 BLR 347 23

2011 (9) SCC 257 24

AIR 1963 SC 174

Page 27 of 34

language, direct and indirect, whether it takes the form of express solicitation,

or of hints, insinuation or encouragement. The word 'instigate' means to goad

or urge forward or to provoke, incite, urge or encourage doing an act. The word

''instigate'' as used in s.107 cannot be restricted to the use of actual words. It

has to be given wider meaning commensurate with common experience of life.

The word ''instigate'' literally means to provoke, incite, urge on or bring about

by persuasion to do anything. The abetment may be by instigation, conspiracy

or intentional aid as provided in the three clauses of the section. There must be

reasonable certainty in regard to the meaning of the word used by the 'inciter',

but the actual words need not be proved. Advice per se does not necessarily

amount to instigation. Instigation necessarily connotes some active suggestion

or support or stimulation to the commission of the act itself. Advice amounts to

instigation only if it was meant actively to suggest or stimulate the commission

of an offence. Instigation may be of an unknown person. A mere acquiescence

or permission does not amount to instigation.

63. Explanation 1 to this section says that a person who (1) by willful

misrepresentation, or (2) by willful concealment of a material fact which he is

bound to disclose, voluntarily causes or procures, or attempts to cause or

procure a thing to be done, is said to instigate the doing of that thing.

64. Abetment by conspiracy--Second clause- 'Conspiracy' consists in the agreement

of two or more [persons] to do an unlawful act, or to do a lawful act by

unlawful means. So long as such a design rests in intention only, it is not

indictable. When two agree to carry it into effect, the very plot is an act in itself,

and the act of each of the parties, promise against promise, actus contra actum,

capable of being enforced, if lawful, is punishable if for a criminal object or for

the use of criminal means. It is not necessary that the abettor should concert

the offence with the person who commits it. It is sufficient if he engages in

conspiracy in pursuance of which the offence is committed. Where parties

concert together, and have a common object, the act of one of the parties,

Page 28 of 34

done in furtherance of the common object and in pursuance of the concerted

plan, is the act of all.

65. Abetment by aid-Third clause- A person abets by aiding when by act done

either prior to, or at the time of, the commission of an act, he intends to

facilitate, and does in fact facilitate, the commission thereof. For instance, the

supplying of necessary food to a person known to be engaged in crime is not

per se criminal: but if food were supplied in order that the criminal might go on

a journey to the intended scene of the crime, or conceal himself while waiting

for an opportunity to commit the crime, the supplying of food would be in

order to facilitate the commission of the crime and might facilitate it. In order

to constitute abetment by aiding within the meaning of the third paragraph of

section 107 IPC the abettor must be shown to have intentionally aided the

commission of the crime. A person may invite another casually or for a friendly

purpose and that may facilitate the murder of the invitee. But unless it is shown

that the invitation was extended with a view to facilitate the commission of the

murder, it cannot be said that the person extending the invitation had abetted

the murder.

66. Every abetment must of course precede the commission of the offence

abetted. There is, however, a difference between an abetment which is done at

the time the principal offence is committed i.e. on the spur of the moment, and

one, that is done prior to and independently of the commission of the offence.

If abetment is divided into these two kinds, it follows that while abetment by

instigation and abetment by intentionally aiding the offence can both be done

either immediately before the commission of the offence or prior to it, whereas

abetment by conspiracy can hardly be committed at the time of the

commission of the offence.25

67. Abetment involves active complicity on the part of the abettor at a point of the

time prior to the actual commission of the offence. It is of the essence of the

25

See: Sital versus Emperor AIR 1935 Oudh 468.

Page 29 of 34

crime of abetment that the abettor should substantially assist the principal

culprit towards the commission of the offence. A person is said to instigate

another to an act, when he actively suggests or stimulate him to the act by any

means or language, direct or indirect. It is immaterial whether instigation be

personal or through the intervention of a third person. A person may constitute

himself an abettor by the intervention of third person without any direct

communication between himself and the person employed to do the thing.

68. To prove the offence of abetment, it is necessary to prove abetment and the

act abetted was committed in the consequence of the abetment. There can be

abetment of an abetment. The abetment of an abetment is an offence when

particular abetment was an offence. Such would be the case where third

person intervenes between the abettor and the actor. In such a case all that is

required is that the substantive abetment must be the abetment of an offence.

69. Section 109 of the IPC deals with a case of abetment for which no express

provision is made by the IPC. In other words, section 109 does not apply to a

case for which express provision, in respect of abetment is made, for example

Sections 110 to 120, 121, 123, 130, 132, 134, 136, 305 and 306 of the IPC. The

reason is simple, i.e. section 109 contemplates a distinct offence. Thus what

appears from section 109 is that the abettor is not held constructively liable like

under section 34 and section 149 of the IPC. He is held liable by reason of his

assistance to another to put in execution his criminal intention and the

punishment for abetment of an offence is a punishment prescribed for the

abetted offence.

70. An abettor is liable to the same punishment as that which may be inflicted on

the principal offender, (i) if the act of the latter is committed in consequence of

the abetment, and (ii) no express provision is made in the Code for the

punishment of such an abetment. This section is applicable even if the abettor

is not present when the offence abetted is committed provided that he has

instigated the commission of the offence or has engaged with one or more

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other persons in a conspiracy. Failure to prevent the commission of an offence

is not an abetment of that offence. There is a distinction between section 109

and 114 of IPC. Section 114 applies where a criminal first abets an offence to be

committed by another person, and is subsequently present at its commission.

Active abetment at the time of committing the offence is covered by section

109 and section 114 is clearly intended for an abetment previous to the actual

commission of the crime, that is, before the first step has been taken to commit

it.

Criminal Conspiracy; section 120B of IPC:

71. The term conspiracy means a secret plan by a group to do something unlawful

and harmful or something which is not unlawful but by unlawful means.

According to Stephen, ‘when two or more persons agree to commit any crime,

they are guilty of conspiracy whether the crime was committed or not’. It is

not necessary in order to constitute a conspiracy that the acts agreed to be

done should be acts which if done should be criminal. A conspiracy consists of

unlawful combination of two or more persons to do that which is contrary to

law or to do that which is wrongful towards other persons. A mere agreement

to commit an offence becomes criminal conspiracy. In IPC section 120A the

term conspiracy has been defined as ‘When two or more persons agree to do,

or cause to be done, an illegal act or an act which is not illegal but by illegal

means, such an agreement amounts to criminal conspiracy’. Honourable

Supreme Court has also defined conspiracy in Bhagwant Swarup versus

State of Maharashtra,26 as “two or more corrupt persons agreeing together

to do, by concerted action, something unlawful either as a mean or as an end”.

72. In Haradhan Chakrabarty v/s. Union of India,27 it has been laid down that,

“Two or more persons must be parties to such an agreement and one

person alone can never be held guilty of criminal conspiracy for the

simple reason that one cannot conspire with oneself”.

26

AIR 1965 SC 682 27

AIR 1990 SC 1210

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73. Thus the conspiracy is a kind of agreement to do an unlawful act, or a lawful act

by unlawful means. Being contrary to law the conspiracy is always hatched in

secrecy, and executed in darkness of the facts. The agreement is the gist of the

offence. In order to constitute a single general conspiracy, there must be

common design and common intention of all to work in furtherance of the

common design. Each conspirator plays his separate part in one integrated and

united effort to achieve the common purpose. The conspiracy may develop in

successive stages. There may be a general plan to accomplish the common

design by such means as may from time to time be found expedient.28

74. Broad principles governing the law of conspiracy-

75. Some of the broad principles governing the law of conspiracy are summarized

in Rajiv Gandhi assassination case i.e State through Superintendent of

Police, CBI/SIT versus Nalini and others,29 are as under:-

Under Sec.120-A, offence of criminal conspiracy is committed when two

or more persons agree to do or cause to be done an illegal act or legal

act by illegal means. When it is a legal act by illegal means overt act is

necessary. Not only the intention but also there had to be agreement to

carry out the object of the intention, which is an offence

a. Acts subsequent to the achieving of the object of conspiracy may

tend to prove that a particular accused was a party to the

conspiracy.

b. Conspiracy is hatched in private or in secrecy. It is rarely possible to

establish a conspiracy by direct evidence. Usually, both the existence

of the conspiracy and its objects have to be inferred from the

circumstances and the conduct of the accused.

c. It is not a part of the crime of conspiracy that all the conspirators

need to agree to play the same or an active role.

d. When two or more persons agree to commit a crime of conspiracy,

then regardless of making or considering any plans for its

commission, and despite the fact that no step is taken by any such

28

See: Hussain Umar versus Dalip Sinhji AIR 1970 SC 45. 29

(1999) 5 SCC 253 at page 515-518

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person to carry out their common purpose, a crime is committed by

each and every one who joins in the agreement.

e. A charge of conspiracy may prejudice the accused because it forces

them into a joint trial. Introduction of a evidence against some may

result in the conviction of all, which is to be avoided.

f. It is the unlawful agreement which is the gravamen of the crime of

conspiracy and the offence is complete even though there is no

agreement as to the means by which the purpose is to be

accomplished. The unlawful agreement which amounts to a

conspiracy needs to be formal or express, but may be inherent in

and inferred from the circumstances, especially declarations, acts

and conduct of the conspirators. The agreement need not be entered

into by all the parties to it at the same time, but may be reached by

successive actions evidencing their joining the conspiracy.

g. A criminal conspiracy may be termed as a partnership in crime

inasmuch as any act done by any of the conspirators pursuant to the

agreement is, in contemplation of law, the act of each of them and

they are jointly responsible therefor. The responsibility of the

conspirators extends not only to what is done by any of the

conspirators pursuant to the original agreement but also to

collateral acts incidental to and growing out of the original purpose.

The joinder of a conspiracy by a new member does not create a new

conspiracy nor does it change the status of other conspirators, and

the mere fact that conspirators individually or in groups perform

tasks to a common end does not split up a conspiracy into several

different conspiracies.

h. A man may join a conspiracy by word or by deed. However, criminal

responsibility for a conspiracy requires more than a merely passive

attitude towards an existing conspiracy. One who commits an overt

act with knowledge of the conspiracy is guilty. And one who tacitly

consents to the object of a conspiracy and goes along with other

conspirators, actually standing by while the others put the

conspiracy into effect, is guilty though he intends to take no effective

part in the crime.

76. Before addition of Section 120-A and Section 120-B to IPC, conspiracy to

commit offences was not punishable. It became punishable as an abetment, if

the offence was actually committed. This is evident from the language of

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Section 107, which defines abetment. Hence, it is necessary to know the

distinction between them. The offences created by Sections 109 and 120-B of

IPC are quite distinct. There is no analogy between them. There may be an

element of abetment in conspiracy, but conspiracy is something more than an

abetment. Conspiracy to commit an offence is itself an offence and a person

can be separately charged of such conspiracy.

77. Comparative chart of the four sections-

Sr.No. section 34 section109 section120-B section149

1 Enacted a rule of co-extensive culpability when offence is committed by more than one accused

There must be abetment of an offence

Consists in the very agreement between 2 or more persons to commit a criminal offence

Creates a specific offence and postulates of 5 or more persons having a common object

2 Element of participation in action which is the leading feature of the section

The act abetted must have been committed in consequence of the abetment

Punishment for the offence depends upon whether the illegal act has or has not been carried out

Though there is common object, the intentions of several members may differ and indeed may be similar

3 section 34 does not create an offence and provisions thereof merely lay down a rule of law

There must be no express provision made in the Code for the punishment of such abetment

Participation in the conspiracy may not be beyond assent to the agreement.

Creates a definite head of criminality

4 Punishment will be same as for the offence itself.

Punishment will be same as for the offence itself.

Separate punishment is provided.

Common object of the members is the basis.

5 A single person can be convicted because each is responsible for the acts of all others.

Single person can be convicted only for this section, since his act is independent.

Single person can be convicted only for this section, since his act is independent.

If others acquitted, only one accused cannot be convicted under this section.

Page 34 of 34

Conclusion:

78. Therefore every precaution is required to be taken while framing charge,

depending upon the prosecution case, role allegedly played by each of the

accused, because punishment will depend upon the same, if the offence is

proved.