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2002 DIGILAW 425 (KER)

V. Syamala v. Smt. Sneha Prabha

2002-07-03

T.M.HASSAN PILLAI

body2002
Judgment :- The complaint filed by the first respondent herein against the petitioners herein and other accused persons in C.C.No.557 of 1999 on the file of the Judicial I Class Magistrate Court, Varkala is sought to be quashed invoking the powers of this Court under Section 482 Cr.P.C. The contention vehemently urged before me for quashing the complaint is that no overt act is attributed against the petitioners herein in the complaint to prove their involvement in the alleged commission of the offences punishable under Sections 447, 427, 379, 506(2) and 149 IPC as member of an unlawful assembly. 2. Learned counsel for the petitioner contended that the allegations made in the complaint, even if taken at their face value and accepted in their entirety, do not prima facie make out a case against the petitioners herein, and he very strongly argued that invoking the inherent powers of this Court, which is to be exercised sparingly and with due care and caution, the complaint is to be quashed as against them. 3. I find no substance in the contention urged before me by the learned counsel for the petitioners. Clear and specific allegation is made against the petitioners and other accused persons in paragraphs 4,5,7 and 8 of the complaint that they formed themselves into an unlawful assembly, and in prosecution of the common object of the unlawful assembly, committed the aforesaid offences. Paragraphs 4 and 5 alone are reproduced here for the purpose of showing that clear and specific allegation is made against the petitioners herein attributing overt acts on their part. 4. From a bare reading of the complaint itself it is crystal clear that overt acts were attributed against all the accused persons. Learned counsel for the petitioners appears to be labouring under a misconception that for fastening liability with the aid of Section 149 of the Penal Code commission of overt act is necessary. It is to be pointed that it is not argued by learned counsel for the petitioners that it is not asserted in the complaint the petitioners and others had not formed an unlawful assembly and petitioners ware not the members of the unlawful assembly. It is to be pointed that it is not argued by learned counsel for the petitioners that it is not asserted in the complaint the petitioners and others had not formed an unlawful assembly and petitioners ware not the members of the unlawful assembly. A four Judge Bench of the Supreme Court in Masalti v. State of U.P. (AIR 1965 SC 202) held that in law it would be correct to say that before a person is held be a member of an unlawful assembly, it must be shown that he had committed some alleged overt act or had been guilty of some illegal omission in pursuance of the common object of the unlawful assembly. The Four Judge Bench explained the interpretation given to Sections 141 and 149 in Baladin v. State of U.P. (AIR 1956 SC 181) as under. “It appears that in the case of Baladin, the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141, Indian Penal Code. Section142 provides that however, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continue in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this court in the case of Baladin, assume significance; otherwise, in law, it would not he correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr Sawhney suggests.” Supreme Court reiterated in Lalji v. State of U.P. (1989 SCC (Cri) 211) the above quoted paragraph in the following words. “The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 Indian Penal Code. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to he likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.” In Kaki Ramesh v. State of A.P. (1994 SCC (Cri) 1214) the Supreme Court repelled the contention that no overt act was attributed to appellant No.1 and liability cannot be fastened with the aid of Section 149 of the Penal Code. The Supreme Court held that that submission has no cutting edge and held that proposition of law well settled is that for fastening liability with the aid of Section 149 of the Indian Penal Code commission of overt act is not necessary. So, even if it is assumed that no overt act is attributed to the petitioners in the complaint as specific allegation is made against them that they along with others formed themselves into an unlawful assembly and in prosecution of the common object of the unlawful assembly, the offences alleged were committed, to fasten on them liability with the aid of Section 149 of the Penal Code commission of overt act is not necessary. So, no ground is made out to invoke the inherent jurisdiction of this Court to quash the complaint. Hence, this Crl.M.C is dismissed.