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SUMMARY Of Business Conducted at Workshop on Registr ation of Documents , Impounding of documents, Common Intention, Common object, Abetment and Criminal Conspiracy Page 2 of 5 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 sugges ted 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 o f 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 Impou nding of Documents ’ and ‘ Common Intention, Common Object, Abetment and Criminal Conspiracy ’ . The workshop was scheduled on 1 8 t h J a n u a r y 2 0 1 5 , at Conference Hall of District Court Wardha. The Workshop was inaugurated by lightening of traditional lamp and S araswati Poojan . The Principal District and Sessions Judge Madam Vibha Kankanwadi ha d delivered the Welcome Speech o n t h e t o p i c . E x p r e s s i n g c o n c e r n o v e r n e e d o f c a u t i o u s l o o k t o i m p o u n d i n g o f d o c u m e n t s , Madam Vibha Kankanwadi , the Principal Di strict and Sessions Judge, Wardha, had asked each judicial officer to take live part in discussion. T h e r e a f t e r , Mr. Y a s h d e e p L . M e s h r a m , [ C JJD and JMFC , S e l o o , D i s t - Wardha ] ha d r e a d o v e r the Summary on C i v i l T o p i c . T he summary was projected Page 3 of 5 on screen using projector , simultaneously while it was read . E ach judicial officer was reading the summary personally, on his laptop. After the summary was read out, t h e t o p i c r e g i s t r a t i o n a n d i m p o u n d i n g o f d o c u m e n t s w a s p u t t o d i s c u s s i o n . A t t h e f i r s t p l a c e , d e f i n i t i o n o f ‘ d u l y s t a m p e d ’ i n s t r u m e n t , a s p r o v i d e d u n d e r s e c t i o n 2 ( l ) o f w a s i m p r e s s e d u p o n . T h e r e a f t e r t h e p r o c e d u r e t o i m p o u n d d o c u m e n t s w a s d i s c u s s e d a n d e n g r a i n e d w i t h h e l p o f l a n d m a r k p r e c e d e n t i n c a s e o f Shri Jayasingh Narayan Tupe versus Shri Sambhaji Baburao Pawar and others , r e p o r t e d i n 2013(3) Mh . L . J . 433 . T h e d i s c u s s i o n a c c e n t u a t e d u p o n p r i n c i p l e t h a t s e c t i o n 3 4 o f M a h a r a s h t r a S t a m p A c t , 1 9 5 8 a n d s e c t i o n 4 9 o f R e g i s t r a t i o n A c t , 1 9 0 8 p r o v i d e t w o e m b a r g o s f o r a d m i s s i b i l i t y o f a d o c u m e n t . T h e s e a r e t w o t e s t s w h i c h a d o c u m e n t m u s t p a s s , p r i o r t o i t i s a d m i s s i b l e i n e v i d e n c e . Thereafter, recent c i v i l 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 there after 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) M h.L.J. 297 Yashwant Anant Fadte - deceased - Through Legal Representatives versus Shankar Raghu Fadte - deceased - and others, Page 4 of 5 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 pronounc ements 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 t hese cases was useful, energetic and full of vigour. T h e n , Mr. Vi k e s h A a s u d a n i , [ 2 n d Joint CJJD and JMFC, S a m u d r a p u r ] had read out the Summary on t h e s e l e c t e d c r i m i n a l t o p i c . In the discussion followed thereto, many judicial officers had expressed v i e w s o n t h e t o p i c . C o m m o n i n t e n t i o n , C o m m o n o b j e c t , A b e t m e n t a n d C r i m i n a l C o n s p i r a c y w a s d i s c u s s e d w i t h h e l p o f illustrative e x a m p l e s . T h e d i s c u s s i o n i n t h i s s e g m e n t w a s f u l l o f enthusiasm a n d a c t i v i t y . A l m o s t e a c h o n e o f t h e a s s e m b l e d j u d g e s h a s c o n t r i b u t e d i n t h e d i s c u s s i o n a b o u t t h e s e c o n c e p t s o f v i c a r i o u s l i a b i l i t y . In next segment of this workshop, following recent c r i m i n a l 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, Page 5 of 5 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 : N e e d o f e x p l a n a t o r y s t a t e m e n t o f a c c u s e d i s e x p r e s s e d . 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 Magistr ate 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 Kanka nwadi . Then, M s . A n j a l i K h a d s e , [ CJSD, Wardha] had expressed Vote of thanks. It concluded t h e t h i r d a n d l a s t workshop of judicial officers in Wardha Distric t. M s . I s h r a t S h e i k h , [ Joint CJ J D, Wardha] h a d a n c h o r e d this workshop. Page 1 of 34 Provisions relating to Registration of documents under R egistration 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. O bject of Registration Act 2. The ob ject of Registration and inter - a lia Registration Act is elaborately discussed by Honoura ble 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 publicit y 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 perso ns 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 i s concerned what obligations exist with regard to them. It ensures that every person dealing with 1 AIR 2012 SC 206 Page 2 of 34 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 a ll 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 register ed. 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 va lue. 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 01 st 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 t he 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 : Page 3 of 34 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 prope rty). 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 prescr ibed 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 bee n 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 : C ertain transactions can be effected without writ ing, 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 Page 4 of 34 parties to get it registered under the third category . Limitation for registration of a document : 8. Limitation fo r 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 te rm ‘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 d ocument is presented for registration . 9. Sec tion 17 deals with documents of which regis tration is compulsory. Whereas, su b - 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 section 17 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 i tself 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, a nother 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 Page 5 of 34 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 i s 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 c ollateral 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 embod ied 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 o f the terms of the contract under section 91 of Evidence Act can be given. What is Collater al purpose? 11. Under the proviso to Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a collate ral fact/collateral purpose. In Ratan Lal and others versu s Harisankar and others, 3 while discussing the meaning o f the term "Collateral Purpose", :on oura ble Allahabad :igh Court ha s 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 v ersu s Behari Lal Kohli , 4 :onoura ble 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 Page 6 of 34 permission to his tenant to sub - let. It was also held in said decision that if a decree purp orting 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. 3(2, 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 versu s 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 pur pose 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 1() : " The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lah ore, Assam, Nagpur, Pepsu, Rajasthan, Crissa, Rangoon and Jammu & KashmirǢ the former Chief Court of CudhǢ 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 v arious 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) Page 7 of 34 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 whic h the law required registration. d. A collateral transaction must be a transaction not itself required to be effec ted by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of t he value of one hundred rupees and up wards. e. If a document is inadmissible in evidence for want of registration, none of its terms c an 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 a t 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 --- Page 8 of 34 IMPOUNDING OF DOCUMENTS : 17. The object of the Nombay 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 bea rs 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 Proce dure , 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 a nd 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 impo und the document and impounding of such document is provided under Order XIII Rule 8 of the Code of Civil Procedure. Page 9 of 34 ‘ 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, imp ound the same. P erusal 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 offi cer) 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 stam ped. 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 su bsection (2) is to be followed. 22. In the case of Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao & others , 7 Honoura ble 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 instrum ent, 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. Pro viso (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 c ontents 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 provis ions 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 late r 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.” Page 11 of 34 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 o nly 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 i nstrument 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 o fficers, 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 ‘ fu nctus 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 se ction 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 th e 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 ch argeable 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 bef ore 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 impound ed 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 impo unding: - 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 25ǥ. However, the Trial Court t hereafter 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, t he 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”. Sec tion 49 of Registration Act & Sec tion 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 chargeab le 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) a ffect any immovable property comprised therein, or (ii) c onfer any power to adopt, or (iii) b e 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 e ntered 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 registrati on. 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 sta tus of any immovable property. Relevant Date for Le vying 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. Hon oura ble Bombay High Court has observed in case of Krishn a Sheena Shetty versu s 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 instru ments in Sec tion 34 (a) (ii) i s concerning penalty.” 31. It must be mentioned that i n H emendra 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 can not be postponed. 32. Opportunit y 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. Li ability 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 pe nalty, i n 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 3 4 “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 req uired 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. N o 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 du ly 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 th e 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 evid ence. 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 docum ent, 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 ‘ instrumen t’ 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 S ection 33 of the Stamp Act cannot be made applicable in r espect 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 co urse i s, 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 a dmissibility 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. S ection 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 collat eral 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 d ocument 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 t erms like ‘ Common Intention ’, ‘ Abe t ment ’, ‘ 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 Web ster’s dictionary defines intention as ‘ determination about an action or result ’. In Iyer’s Hudicial 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, in tention 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 refl ects 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 commissi on 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 int ention is common is to see whether the intention of one was known to the other and shared by that other. T he 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 offen ce, 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 com mit 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 crimin al 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 In dia 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. E xplaining 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 an d 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 vic ariously 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. I t 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 h e 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 incide nt. 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 cha rged with the aid of Section 34. B e i t 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 tha t 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 provis ion. 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 princi ples 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 cause s 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 ) t he 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. Th e first leading case in the point is Barendra Kumar Ghosh v ersus 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 mean time 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 accu sed 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. Th e 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. H o n o u r a b l e High Court of Calcutta and the Privy Council both agreed with the findin gs 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, i n 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 t hat 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 liabil ity 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 obj ect have their own distinctive features. In Maranadu and another v ersus 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 t o 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 t he 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 co nsiderations. What w a s 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 unlaw ful 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 vicario us 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 i n 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 mem bers 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 ignor ed 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 expres s 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 modi fied 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 an y 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 pro secution 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 commo n 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 C handran and oth ers v ersu s S tate of Kerala , 23 as, “ The word s ‘ in prosecution of the common object ’ do not mean ‘ during the prosecution of th e 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 wit h 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 whic h 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 Punjab 24 . 60. Thus, the proposition, which can be drawn, is that under Section 149, though an offence is committed by any member of an u nlawful 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. Abet ment ; s ection 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 S C 174 Page 27 of 34 language, direct and indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement. The wor d '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 in st igation, 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 necessari ly 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 offenc e. 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 i s 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] t o 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 ag ainst 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 sufficie nt 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 mean ing of the third paragraph of s e c t i o n 107 I P C the abettor must be shown to have intenti onally 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 p rincipal 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 inte ntionally 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 S ee: S ital versus Emperor A IR 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 pers on 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 cons titute 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 i n t he consequence of the abetment. There can be abetment of an abetment. The abetment of an abetment is a n offence when par ticular 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 whi ch 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 pro vided that he has instigated the commission of the offence or has engaged with one or more Page 30 of 34 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 commit ting the offence is covered by section 109 and section 114 is clearl y 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 an d 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 cons piracy 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 il l e gal but by illegal means, su ch an agreement amount s to criminal conspiracy ’ . Honourable Supreme Court has also defined conspiracy in Bhagwant Swarup v e rs us 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 o ne can not conspire with oneself ” . 26 AIR 1965 SC 682 27 AIR 1990 SC 1210 Page 31 of 34 73. Thus the conspiracy is a kind of agreement to do an unlawful act, or a lawful act by u n lawful 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 t o 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 obje ct 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 estab lish 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 agr ee 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 A IR 1970 SC 45. 29 (1999) 5 SCC 253 at p age 515 - 518 Page 32 of 34 person to carry out their c ommon 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 nee ds 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 s uccessive 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 in to 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 Page 33 of 34 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 somethi ng 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 section 109 section 120 - B section 149 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 pe rsons 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.