JUDGMENT 1. -This revision petition is directed against the order dated 7th July 1982 passed by the additional Sessions Judge No. 2, Jodhpur in Sessions Case No. 51/81. By the order aforesaid, the additional Sessions Judge has directed that charges under sections 148, 341, 353, 332 and 336 read with section 149 I.P.C. section 457 read with section 149 and section 436 read with section 149 as well asunder section 307 read with section 149 be framed against the petitioners. 2. On 30th June, 1981 at 11.20 A.M. Roop Singh. S.H.O., P.S. Pipar City, lodged a report at the said police station in relation to an incident, which is alleged to have taken place in Piper City on 30th June, 1981 between 9 A.M. to 11 A. M. According to the said report, on receiving an information at about 8 A.M., that Malis, Sunars and persons belonging to Arya Veer Dal and Hindu Mahasabha were stopping buses and preventing them from coming towards Jodhpur at Malimela; the informant as well as the C.O., Bilara, C.l. lidan Ram, l/C S.I S. Jodhpur, S L. Jeewan Khan, A.S.I. Deshraj, H.C. Magan Singh and Mangilal and constables Chhotu, Mohanlal, Chhotu Singh, Bhura Ram, Rama Kishan, Madhavdan, Raghubir Singh, Lumbaram, Budh Singh, Heer Singh Babulal, Labh Singh, etc. went there. They also took Shri Gulab Chand Singhal S D M., Jodhpur, with them. When they reached at the scene, they found 300-400 persons armed with lathis, barchis and dharias. They had stopped a roadways bus. Ramrakh Purohit, Harnarain Mundra, Jairam Bidawat Mali, Brijlal Khandelwal, Om Prakash Sunar, and Javrilal were instigating the crowd. These persons and the other persons present were asked not to stop and obstruct the movement of buses but they said that they did not want the bus stand to be kept at that place. They were persuaded by the S.D.M. and the C.O. to come to the office of the Municipal Council for the purpose of having talks about the proper place for locating the bus stand. But, in the meanwhile all of them had formed a procession and they started shouting slogans provoking communal feelings and the said procession started moving. When the procession reached Salawaton-ka-Bas, the persons in the procession started abusing the Mohammedans who were standing there and started throwing stones towards them. In reply, the Mohamedans also threw stones on the crowd. But, in the meanwhile all of them had formed a procession and they started shouting slogans provoking communal feelings and the said procession started moving. When the procession reached Salawaton-ka-Bas, the persons in the procession started abusing the Mohammedans who were standing there and started throwing stones towards them. In reply, the Mohamedans also threw stones on the crowd. The leaders of the procession were Harnarain Mundra, Jairam Bidawat Mali, Javrilal, Omprakash, Ramrakh purohit, Satyanarain Acharya, Ratanlal Shrimaii, Jugal Kishor, Prakash cycle wala, Birju Khendelwal, Ambalal Tekha, Ramswaroop Dayama, Jethmal, Satyanarain Mali, Kishanlal, Harikishan, Ramswaroop Sevak Tejraj, Ganpatlal and Ratilal and they were instigating the crowd and were saying that the Mohamedans had turned Pipar into Pakistan. Thereafter crowd consisting of 500 to 600 persons became agitated and they broke open the door of kerosene oil shop of Gabru Chhipa and sprinkled kerosene oil from the kerosene tin and set the shop on fire. Harnarain Mundra and Jairam Mali had taken the lead in this. When the police came forward to extinguish the fire, the crowd surrounded the police party from all sides and started throwing stones at them. Since the crowd was getting violent, tear gas was used but it proved ineffective. Thereupon, the S. D. M. passed an order for lathi charge but in spite of that, the rioters surrounded the police party from all sides. The police party proved to be inadequate and stones were being thrown at them from all sides. The rioters shouted that the police men should also be burnt and thereupon Javrilal and Om Prakash caught hold of constable Raghuveer Singh and wanted to throw him in the fire but he was rescued. As a result of the throwing of stones, A. S. I. Deshraj, Head Constable, Mangilal and constables Chhoturam, Mohansingh, Bhura Ram, Chhotu Singh and Narpat Singh sustained injuries. When the situation became very serious and violent, the S. D. M. passed the order for firing and thereupon Bhikaram fired five cartridges and Sumar Singh fired 2 cartridges in the air. As a result of the firing, the crowd split into groups and retreated. In the said report it was stated that if such steps had not been taken, the rioters would have entered into the houses of Mohammedans and would have killed them and would have also killed the police men. As a result of the firing, the crowd split into groups and retreated. In the said report it was stated that if such steps had not been taken, the rioters would have entered into the houses of Mohammedans and would have killed them and would have also killed the police men. On the basis of the aforesaid report, a case under section 147, 148, 138, 307, 440, 336, 353, 332 & 427 I. P. C. was registered and investigation was commenced. After completing the investigation, the police filed a charge sheet dated 21st July, 1981 in the court of Munsif and Judicial Magistrate, I Class, Pipar. The said charge sheet was against 60 accused persons. In the said charge sheet, all the petitioners except petitioner No. 1 Srinivas Bhutra, Satynarain petitioner No. 44 and Bhanwarlal Bhutra petitioner No. 45 were named as the accused persons. Another charge sheet dated 9th September, 1931 was filed in the court of Munsif and Judicial Magistrate, Pipar and in the said charge sheet, the aforesaid three petitioners No. 1, 44 and 45 were named. The Judicial Magistrate after examining the papers filed along with charge sheet passed an order dated 14th September, 1981 committing the case for trial to the court of Sessions. The case was transferred to the court of Additional Sessions Judge No. 2, Jodhpur and the Additional Sessions Judge, after hearing the counsel for the accused persons as well as the Additional Public Prosecutor passed the order dated 7th July, 1982 whereby he held that prima facie the following charges were made out:- (i) offences under sections 148, 341, 353, 332 and 336 I.P.C. read read with section 149 I. P. C. against all the accused persons; (ii) offence under sections 307 I.P.C. against accused Javrilal, Om Prakash, Narain Mali and offence under section 307/149 I. P. C. against all the accused persons; (iii) offence under section 427 read with section 149 I. P. C. for breaking open the doors of the shop of Gabru Chippa and the offence under section 436 read with section 149 I.P.C. for setting fire to the said shop against all the accused persons; and (iv) offences under section 341, 436, 307, 353, 332 and 427 read with section 109 I. P. C. against accused Ramrakh Purohit, Harnarain Mundra, Jairam Bidwat Mali, Brijlal Khandelwal, Om Prakash Sunar, Javrilal. By his order aforesaid, the Additional Sessions Judge directed that charges be framed against accused persons for the aforesaid offences and they should be tried. Feeling aggrieved by the aforesaid order, the petitioners, forty five in number, have filed this revision petition wherein they have submitted that on the basis of the material on record, no charge could be framed against the petitioners and that the order passed by the Additional Sessions Judge for framing the charge against them, should be quashed. 3. I have heard Shri M. M. Singhvi, the learned counsel for the petitioners and Dr. S. S. Bhandawat, the learned Public Prosecutor for the State.I have also careful perused the record. 4. Before dealing with the submissions urged by Shri Singhvi, it would be necessary to set out the provisions contained in sections 227 and 228 of the Code of Criminal Procedure, 1973 (new code), which relate to the discharge as well as the framing of charge in the trial before the Court of Sessions. The said sections read as under:- "227. Discharge - If, upon consideration of the record of the case and the documents submitted there with, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 228. Framing of charge- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether be pleads guilty of the offence charged or claims to be tried." 5. (2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether be pleads guilty of the offence charged or claims to be tried." 5. The aforesaid sections postulate that the accused should be discharged if the Sessions Judge, upon consideration of the record and the documents submitted therewith, considers that there is not sufficient ground for proceeding against the accused. In this regard, the new code makes a departure from the provisions contained in the Code of Criminal Procedure, 1898 (old code) in the sense that under the old code, the committing Magistrate was entitled to discharge the accused whereas under the new code, the said powers of discharge has been conferred on the Court of Sessions. The expression "not sufficient ground for proceeding" as contained in section 227 of the new code is also found in section 203, which empowers the Magistrate to dismiss the complaint if in his judgment, there is not sufficient ground for proceeding. The expression "not sufficient ground for committing" was contained in section 209 of the old code, which empowered the Magistrate, if he found that there were not sufficient grounds for committing the accused for trial, to discharge him. 6. The words 'sufficient grounds'' contained in section 209 of the old code, came up for consideration before the Supreme Court in R. G. Ruia v. State of Bombay, AIR 1958 S.C. 97 and the Supreme Court/after taking note of the decisions of the various High Courts, held that in each case, the Magistrate holding the preliminary inquiry, has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit. 7. In Alamohan Das v. State of West Bengal, AIR 1970 S.C. 863 , the Supreme Court while dealing with the provisions of section 209 of the old code has laid down as under:- "A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the material son record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. He is entitled to sift and weigh the material son record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is his duty to discharge the accused; if there is some evidence on which a conviction may reasonably be based, he must commit the case. The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before the Magistrate at that stage is whether there is some credible evidence which would sustain a conviction." 8. While dealing with the provisions of section 203 of the old code, the Supreme Court in Chandra Deo v. Prakash Chandra, AIR 1963 S.C. 1430 . , laid down that for determining the question whether any process is to be issued or not, what the -Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction and whether the evidence is adequate for supporting the conviction can be determined only at the trial and : not at the stage of enquiry. In the said case, the Supreme Court also observed that no doubt the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of complainant. 9. In Nirmaljit Singh v. The State of West Bengal, AIR 1972 S.C. 2639 . , the Supreme Court, after reiterating the observations contained in Chandra Deo v. Prakash Chandra (supra), have observed that unless the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case. 10. , the Supreme Court, after reiterating the observations contained in Chandra Deo v. Prakash Chandra (supra), have observed that unless the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case. 10. In Nagawwa v. Veerenna, AIR 1976 S.C. 1947 , the Supreme Court has held that in coming to a decision as to whether a process should be issued under section 203, the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations and the order of the Magistrate issuing process against the accused ' would be liable to be set aside in a case where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. 11. The provisions of sections 227 and 228 of the new code came up for consideration before the Supreme Court in State of Bihar v. Ramesh Singh, AIR 1977 S.C. 2018 and in the said case it has been observed as under:- "Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or S. 228 of the Code. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his connection." In the said case reference has been made to the decisions in Chandra Deo v. Prakash Chandra (supra) and Nirmaljit Singh v. The State of West Bengal (supra) given with relation to the provisions of section 203 of the old code, 12. In Union of India v. Prafulla Kumar, AIR 1979 S.C. 366 , the Supreme Court, while dealing with the provisions of section 227 of the new code, have referred to the observations in Alamohandas v. State of West Bengal (supra) and have laid down the following principles:- "(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weight the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out : (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie ease would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." In view of the aforesaid decisions referred to above, it must be held that while considering the question of framing the charges under sections 227 and 228 of the new code, the court has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and the court, while doing so, has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court and any basic infirmities appearing in the case. But the Court is not entitled at this stage to make an enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. 13. In the present case the material on record consists of the F.I.R. lodged by Roop Singh, the injury reports and the statements recorded during the course of investigation under section 161 Cr. P.C. Shri M.M. Singhvi, the learned counsel for the petitioners, does not dispute that the said material on the face of it implicates the petitioners. Shri Singhvi, has, however, submitted that if the road probabilities of the case are considered, it cannot be said that there was sufficient ground for proceeding against the petitioners and that the petitioners were entitled to be discharge under section 227 of the new code. 14. The learned Public Prosecutor, on the other hand, has submitted that on the basis of the statements recorded during the course of investigation under section 161 Cr. C. P., it is clear that the petitioners were the members of the unlawful assembly and had taken active part in the occurrence and, therefore, it is not a case in which it can be said that there was not sufficient ground for proceeding against the petitioners and they should have been discharge under section 227 of the new code. 15. 15. In P. S. Sawant v. State of Maharashtra, AIR 1979 S.C. 1265 , the Supreme Court was dealing with a case similar to the present case wherein a mob of 400 to 500 persons had committed violence by throwing brick-bats on the houses of some of the prosecution witnesses. In that case,the Supreme Court have laid down as under:- "Before the appellants could be convicted of sharing the common object of the assembly or of being members of the same at a time when the assembly became unlawful, it had to be proved by the prosecution that the appellants were members of the unlawful assembly at the time when assembly became unlawful and started pelting stones." "Before the Court is satisfied that an accused is a member of an unlawful assembly it must be shown either from his active participation or otherwise that be shares the common object of the unlawful assembly. It is not necessary that the accused should be guilty of any overt act. It is sufficient if it is shown that as a participant of the unlawful assembly he was sharing the common object of the same." In view of the aforesaid decision of the Supreme Court in order to establish that a prima facie case is disclosed against the petitioners, it is necessary for the prosecution to show that they were members of the assembly when it became unlawful and that they shared the common object of the said assembly. This fact can be shown either from their active participation or otherwise. 16. In the present case, apart from the F. I. R. lodged by Roop Singh, there are statements of witnesses recorded under section 161 Cr. P. C. In the F. I. R., the names of the petitioners are not specifically mentioned. But a\ number of witnesses, where statements have been recorded during the course of investigation under section 161 Cr P. C. have named the petitioners and have also assigned specific roles to them. The witnesses, who have named the petitioners are Murad Ali Dy. P. C. In the F. I. R., the names of the petitioners are not specifically mentioned. But a\ number of witnesses, where statements have been recorded during the course of investigation under section 161 Cr P. C. have named the petitioners and have also assigned specific roles to them. The witnesses, who have named the petitioners are Murad Ali Dy. S. P., Circle Officer, Bilara, Roop Singh, S. H. O., P. S. Pipar, Udan Ram, Circle Inspector, S. I. S. Jodhpur, Deshraj, A. S. I., P. S. Pipar, Mangi lal, Head Constable, P. S. Pipar, Heer Singh, Constable, P. S. Pipar, Lal Singh, Constable, P. S. Pipar, Budh Singh, Constable, P. S. Pipar, Madhodan, constable, P S. Pipar and Ramkishan, constable. P. S. Pipar, In addition to the aforesaid police witnesses, there are also members of the public, namely, Mohammed Tayab, Salim, Abdul Hamid and Wahid who have named some of the petitioners. 17. The first contention urged by Shri Singhvi was that in the present case, the F. I. R. was lodged by Roop Singh, S. H. O., P. S. Pipar City, who was present at the scene and was in a position to identify the persons who. were present in the procession which had indulged in the various offences referred to in the F. I R. and that Roop Singh has also given the names of some of the persons whom he was able to identify. The submission of Shri Singhvi was that no value should be attached to the statements of the witnesses recorded under section 161 Cr. P. C. in so far as they have named the petitioners amongst the persons who were leading the procession, which is said to have indulged in the various offences mentioned in the F. I. R. According to Shri Singhvi, the names of the petitioners have been added in the statements recorded under section 161 Cr. P. C. as an after thought. In my view, the aforesaid contention of Shri Singhvi cannot be accepted. In the F. I. R., Roop Singh has only mentioned the names of the persons, he was able to identify at that time. P. C. as an after thought. In my view, the aforesaid contention of Shri Singhvi cannot be accepted. In the F. I. R., Roop Singh has only mentioned the names of the persons, he was able to identify at that time. But the other persons who were present at the time of the alleged occurrence were in a position to identify more persons, whose names were not mentioned in the F. I. R. In my opinion, the evidence of those persons who had seen and identified the petitioners as participating in the procession which indulged in the various criminal activities cannot be ignored merely because in the F. I. R. lodged by Roop Singh, the names of the petitioners have not been mentioned. 18. The next submission urged by Shri Singhvi was that it was highly improbable for the witnesses to have identified such a large number of persons amongst the crowd and, therefore, no reliance should be placed on the statements of the police personnel as well as the statements of other persons in so far as they have named the petitioners amongst the persons, who were members of the procession, which had indulged in the various criminal acts. In my opinion, the aforesaid contention is also without any merit. From a perusal of the statements of the witnesses that have been examined under section 161 Cr. P. C., it appears that constable Budh Singh has named all the petitioners amongst the persons who were present in the procession. Apart from constable Budh Singh, Heer Singh constable has named all the petitioners except petitioners Madho Ram Jat and Manglaram Bishnoi. Constables Madhodan and Ramkishan have named all the petitioners except petitioners Bhanwarlal Bhutra and Sriniwas Bhutra and constable Lal Singh has named all the petitioners except petitioner Amra Ram Mochi, Khushalaram Mali and Satyanarain Sunar. Apart from the aforesaid constables, the other witnesses have named a number of petitioners in their statements. On the basis of the aforesaid statements, it can be said that each of the petitioners has been mentioned by four to five witnesses. At this stage, it is not possible to reject the statements of these witnesses, that they had identified the petitioners, whose names have been mentioned by them in their aforesaid statements amongst the miscreants. On the basis of the aforesaid statements, it can be said that each of the petitioners has been mentioned by four to five witnesses. At this stage, it is not possible to reject the statements of these witnesses, that they had identified the petitioners, whose names have been mentioned by them in their aforesaid statements amongst the miscreants. As to whether the witnesses were in a position to identify such a large number of persons and have correctly identified the petitioners, who have been named by them and their statements, is a matter, which will have to be considered during the course of trial when the witnesses are cross-examined. But at this stage, it is not possible to hold that the evidence of the witnesses who have said they had seen and identified the petitioners named by them, in their statements recorded under section 161 Cr. P. C. should be rejected on the ground hat it is highly improbable. 19. Another contention that was urged by Shri Singhvi a that none of the constables who had sustained injuries the occurrence and whose presence is not disputed, has named any of the petitioners amongst the persons who had participated in the occurrence and in view of the fact that constables who had sustained the injuries have not named any of the petitioners, it must beheld that the other constables and other witnesses who have named the petitioners falsely implicated the petitioners. I am unable to agree. The statements of the constables, who had sustained injuries in the incident, namely, constable Chhotu Singh, constable Narpa Singh, constable Bhura Ram , constable Mohan Singh, constable Chhotu Ram, I find that the said constables were ail attached to the police lines, Jodhpur, and they had come from Jodhpur along with the police party. The said police constables did not know the petitioners or other residents of Pipar City and, therefore, they were not in a position to identify the petitioners amongst the miscreants who had inflicted the injuries on them and merely because the said constables have not named the petitioners, it cannot be said that the statements of the other constables and other persons belonging to Pipar City who had seen and identified the petitioners, should be rejected. 20. 20. Shri Singhvi has lastly submitted that even if the statements of the witnesses are taken into consideration, the said statements are of omnibous nature only and do not assign any particular overt act to the petitioners whose names have been disclosed in those statements. This contention is also without any substance. It is true that constable Budh Singh, in his statement, has only stated that sixty three persons named by him, including the petitioners, were leading the unlawful assembly and has not specifically assigned any particular act to the petitioners. But the other witnesses, namely, Murad Ali, Dy. S. P., Aidan Ram, C. I., Deshraj, A. S. I., constables Heer Singh, Lal Singh, Mangilal and Ramkishan and Mohammed Tayab, Salim and Abdul Wahid have specifically stated that the persons mentioned by them were taking active part in the procession and were throwing stones at the police. In the circumstances, it cannot be said that the witnesses in their statements recorded under section 161 Cr. P. C. have not assigned any specific role to the petitioners and that on the basis of the statements of those witnesses, it cannot be said that the petitioners named by those witnesses were not members of the unlawful assembly and did not share the common object of the said unlawful assembly. 21. No other contention was urged by Shri Singhvi. 22. Since I am of the opinion that none of the contentions urged by Shri Singhvi for challenging the order dated 7th July, 1982 merits acceptance, the said order passed by the Additional Sessions Judge, must be up-held.Revision dismissed. *******