Shyam Lal v. State of Rajasthan — 1999 DIGILAW 1048 (RAJ)

Honble GUPTA, J.–Vide order dt. 31.7.95 charges u/Ss. 147, 148, 307/149 and 323/149 IPC were framed against Shyam Lal, Hiranand and Prem Kumar, petitioners. The accused filed an application before the trial court to delete the charges u/S. 147, 148 and the charge with the aid of Sec. 149 IPC as only 3 accused had been challaned by the police. That application was rejected by the learned Addl. Sessions Judge vide order dt. 13.4.99. The rejection order has been called in question in this revision petition. (2). The contention of Mr. Mohanani was that the charges u/Ss. 147,148 or a charge with the aid of Section 149 IPC can be framed only when it is alleged that at least 5 accused persons had participated in the occurrence and as in the instant case the Police found the participation of 3 accused (petitioners) only the charges u/Ss. 147, 148 or the charge with the aid of Sec.149 IPC ought not to have been framed against them. (3). The learned P.P. and Mr. Garg, on the other hand, pointed out that in the F.I.R. participation of five persons in the occurrence was alleged and even in the statement u/Sec. 161 Cr. P.C. of the First informant it was stated that the three petitioners and two others viz. Loku Ram and Ravi Kumar had participated in the occurrence, but the police did not challan two persons. They also pointed out that on filing an application by the first informant in the court, the learned Magistrate had issued process against the two left out accused Loku Ram and Ravi Kumar but on technical ground this Court quashed that order of issuance of process. Their contention was that there is every likelihood that after the statements of the prosecution witnesses are recorded, the trial court would implead Loku Ram and Ravi Kumar as accused u/s. 319 Cr. P.C. and hence charges should be quashed. (4). I have considered the rival submissions of the learned counsel for the par- ties. Before we switch over to the contentions raised certain facts deserve to be mentioned. In the F.I.R. , which was lodged immediately after the occurrence, Manjit Singh had stated that five accused persons after alighting from Jeep, had challenged the deceased and had given beatings to him. Before we switch over to the contentions raised certain facts deserve to be mentioned. In the F.I.R. , which was lodged immediately after the occurrence, Manjit Singh had stated that five accused persons after alighting from Jeep, had challenged the deceased and had given beatings to him. It was stated that Loku Ram and Hiranand were instigating the three accused persons who caused the dea- th of Bhupendra Kumar. On this report, a case u/S. 147, 148 and 307 IPC was registered. The police, however, after investigation, challaned only three petitioners u/S. 307, 323, 447/34 and 324 IPC. The Magistrate, on going through the papers filed u/S.173 Cr. P.C., took cognizance against Loku Ram and Ravi Kumar vide order dt. 8.10.93 observing that all the five accused had committed the offence u/S. 147, 148, 307, 324,323, 149 and 447 IPC. The case was committed to the Court of Sessions. The learned Sessions Judge vide order dated 31.7.95 framed charges u/Ss. 147, 148, 307/149, 323/149 and 447 IPC against all the five accused persons. Loku Ram and Ravi Kumar challenged that order by preferring revision petition No. 278/95 in this Court. The contention raised in that revision petition was that as the police had not challaned Loku Ram and Ravi Kumar, the Magistrate could not take cognizance against them, and the commitment of those two accused was illegal. The contention found favour with this Court and vide order dt. 25.2.97 the order of cognizance and commitment of Loku Ram and Ravi Kumar was quashed. It was however observed that the trial court was free to take cognizance after the evidence was recorded against them. Consequent upon the order of this Court, the petitioners of the instant petition filed Cr. Revision Petition No. 207/97 seeking the quashment of their commitment in view of the order dt. 25.2.97 passed in S.B.Cr. Revision Petition No. 278/95. That revision petition was dismissed by this Court vide order dt. 20.8.1998. It was informed during arguments that the SLP preferred against that order has been dismissed by the Honble Supreme Court. (5). The question to be considered is whether the trial court has erred in rejecting the application of the petitioners for dropping the charges u/S. 147, 148 or a charge with the aid of Sec. 149 IPC. 20.8.1998. It was informed during arguments that the SLP preferred against that order has been dismissed by the Honble Supreme Court. (5). The question to be considered is whether the trial court has erred in rejecting the application of the petitioners for dropping the charges u/S. 147, 148 or a charge with the aid of Sec. 149 IPC. There can not be any dispute in this legal position that offence of Sec. 147 or 148 or with the aid of Sec. 149 IPC can be held to have been proved only when it is established that at least 5 persons had taken part in the occurrence. Sec.141 defines `unlawful assembly. The opening words of Section are that there should be at least 5 persons to form an unlawful assembly. `Rioting has been defined under Sec. 146 IPC. When force or violence is used by an unlawful assembly, every member of such assembly is guilty of offence of rio- ting. Section 148 IPC is aggravated form of Sec. 147 IPC. Under Sec. 149 IPC the members of unlawful assembly are liable for the act of other members. As, on the date of framing the charge, the prosecution case was that only 3 accused (petitioners) had taken part in the occurrence, it has to be accepted that the petitioners could not be charged u/s. 147, or 148 or with the aid of Sec. 149 IPC. (6). The Supreme Court in the case of Prabhu Baba vs. State of Bombay (1) finding that evidence against four co-accused was not reliable held that the conviction of the remaining accused with the aid of Sec. 34 IPC was not sustainable. That was the case where the accused were charged u/S. 302 with the aid of Sec. 34 IPC. Again in the case of Sukhram vs. State of M.P. (2) where two named accused persons were convicted by the trial court u/S. 302 read with Sec. 34 IPC and HIgh Court acquitted one of them giving benefit of doubt, the Supreme Court held that the conviction of the remaining accused with the aid of Sec. 34 IPC could not stand. A similar question again camp up before a Bench of four Judges of their lordships in the case of Krishna vs. State of Maharashtra (3) wherein the accused were cha- rged with the aid of Sec.34 IPC. A similar question again camp up before a Bench of four Judges of their lordships in the case of Krishna vs. State of Maharashtra (3) wherein the accused were cha- rged with the aid of Sec.34 IPC. It was observed that before a Court can convict a person u/S. 302 read with Sec. 34 IPC it should come to a definite finding that the said person had a prior concert with one or more other person, named or unnamed for committing the said offence. In that case, the High Court had acquitted three of the four accused persons. The Supreme Court held that the conviction of the fourth accused with the aid of Sec . 34 IPC was wrong. (7). Though all the aforesaid cases were in relation to conviction of the accused with the aid of Sec. 34 yet the Principle enunciated in those cases serves a guide line to be kept in view while framing a charge. The conclusions arrived at by the investigating agency as to the persons who had participated in the occurre- nce are to be accepted at the stage of framing charges. Keeping in view the report u/S. 173 Cr. P.C. filed by the police, at this stage at this stage it cannot be said that the petitioners were members of an unlawful assembly. Therefore, they could not be charged u/S. 147 or 148 IPC or with the aid of Sec. 149 IPC. (8). The trial court has placed reliance on the case of Nar Singh vs. State of U.P. (4). In that case, the situation was that some 24 persons were challaned in a murder case. They were tried under Sec. 148,302/149 and 307/149 IPC. Sixteen of them were acquitted by the trial court and the High Court acquitted six persons leaving only two accused. The questions before the Apex Court was that whether conviction of the two with the aid of Sec. 149 IPC could be upheld. Their lordships held that since the High Court gave a clear finding that there were more than 5 persons who had taken part in the occurrence, the conviction of the two with the aid of Sec. 149 IPC was well merited. Their lordships held that since the High Court gave a clear finding that there were more than 5 persons who had taken part in the occurrence, the conviction of the two with the aid of Sec. 149 IPC was well merited. The ratio of the case is that if it is found that accused, five or more than five, had participated in the occurrence and even four are acquitted for want of reliable evidence the conviction of one with the aid of Sec. 149 IPC is not wrong. (9). The instant case is not of conviction. If the analogy of the case Nar Singh (Supra) is applied to the instant case it has to be accepted that charges u/s. 147, 148 or with the aid of Sec. 149 IPC could not be framed against the three petitioners as the police on investigation found that two of the five accused persons named in the F.I.R., have not participated in the occurrence. The material as on the date of framing charge was that only three accused had taken part in the occurrence. That being so, the ruling relied on by the trial court does not justify the framing of charges u/S. 147, 148 or with the aid of Sec. 149 IPC. (10). Consequently, the revision petition succeeds. The charges framed against the petitioners u/S. 147, 148 and with the aid of Sec. 149 IPC are hereby quashed. It is however made clear that this order will not prevent the trial court to frame charges against the three petitioners with the aid of Sec. 34 IPC or in the event of passing an order u/s. 319 Cr. P.C. impleading additional accused, to frame charges u/Ss. 147, 148 and with the aid of Sec. 149 IPC.