Judgment :- Subhash B Adi, J This Revision Petition is directed against the order passed by the I Additional Sessions Judge at Gulbarga in Sessions Case No.36/1997 dated 4.8.1999. 2. Learned Sessions Judge by the impugned order has ordered for framing of charge for the offences punishable under Section 147, 148, 302 read with Section 149 of IPC. 3. Petitioner is accused before the Learned Sessions Judge. He has questioned the impugned order on the ground that the order for framing charge is perse illegal and without jurisdiction. 4. Respondent No.1 before this Court is a Complainant. She filed a private complaint on 25-10-85 under Section 200 of Cr.P.C., which was registered as P.C.58/1985, interalia, alleging that her husband, the deceased Sidramesh was an editor of a daily newspaper “Kranthi” published from Gulbarga District. He used to ventilate the grievances of the public against the police attrocities. The police had developed an animosity against the deceased. On 26.8.1983, when the deceased was in his press, the then Sub Inspector of Police from Brahmpur Police Station, who was charge sheeted in connection with the murder case, came to the press along with other police officers, took the deceased to the Police Station and assaulted. The said assault was at the instigation of the accused-K. Narayan, the then Superintendent of Police, Gulbarga. On account of the incident on 26.8.1983, the relationship between the accused K. Narayan and the deceased became more strained and in order to harass the deceased, the name of deceased was listed in the rowdi sheet and many criminal cases were filed against him. The accused had also issued a D.O. letter to the Administrator, Municipal Corporation, Gulbarga asking him to evict the deceased from the premises, where the deceased was running his press. In pursuance of such demand by the accused, the Municipal Commissioner had issued notice to the deceased to vacate the premises, for which the deceased had filed a suit. Even before 14.2.1984, accused K. Narayan had attempted to commit murder of the deceased, (the husband of the Complainant). In this regard, the deceased had published a report in his newspaper and has also informed the same to the then MLC Khadri Shamanna, Governor of Karnataka and others. Deceased has also written a letter to the then Honourable Chief Minister informing that there is threat to his life by the accused and others. 5. In this regard, the deceased had published a report in his newspaper and has also informed the same to the then MLC Khadri Shamanna, Governor of Karnataka and others. Deceased has also written a letter to the then Honourable Chief Minister informing that there is threat to his life by the accused and others. 5. On 14.2.1984 at about 10 P.M. when the Complainant was at her house along with other family members, waiting for her husband. At about 10.40 P.M. she received a call from one Annarao Banderwad, his daughter Dakshayini who informed that the deceased (Sidramesh) has been stabbed and Annarao has taken him to the hospital. Immediately, Complainant and her son reached the hospital, and the deceased was still alive and he was in casuality, the deceased informed the Complainant that “the accused was standing before the deceased and instigated others to commit murder and asked the Complainant to ‘dont leave him’.” Thereafter, the accused, who visited the hospital, threatened her interalia alleging that if she report or file complaint, she and her family members will face the same thing what her husband has faced. She also alleged that she has given statement before COD and CBI. However based on the complaint of Annarao, a complaint was registered against the unknown persons and not against the accused. Though statement of the Complainant was recorded, CBI did not file the charge sheet against the accused K. Narayan. It is alleged that though the documents were furnished at the trial, no charge sheet was filed against the present accused K. Narayan and she was under the impression that K. Narayan will be charge sheeted. To her surprise on 16.10.1985, she came to know through the newspaper that no charge sheet has been filed against K. Narayan by the CBI. However charge sheet was filed against 11 accused. She consulted the lawyer and she was advised to file a private complaint. She alleged that here husband was murdered at the instance of K. Narayanaccused in the private complaint and sought for criminal trial against the said K. Narayan. 6. However charge sheet was filed against 11 accused. She consulted the lawyer and she was advised to file a private complaint. She alleged that here husband was murdered at the instance of K. Narayanaccused in the private complaint and sought for criminal trial against the said K. Narayan. 6. Initially, the Learned Magistrate before whom the private complaint has filed, had referred the matter to the police for investigation under Section 156(3) of Cr.P.C., Complainant filed a Revision Petition in C.R.P.No.94/1985, and the Learned Sessions Judge allowed the C.R.P. on 5.11.1985 and directed the Magistrate to proceed under Sections 200, 202 or 203. In this regard, the Learned Magistrate after remand, issued notice to the Complainant and recorded the sworn statement of the Complainant on 18.11.1985. Complainant in her sworn statement marked Ex. P1 to P21. Her further sworn statement was recorded on 19.11.1985, during which Exs P22 to P47 were marked. On the same day, PW.2–son of the Complainant was also examined. PW-3 who was cited as a witness, was issued with a summons. PW-3 was examined on 7.12.1985. IO was examined on 1.2.1986 as PW-4. One practicing advocate examined as PW-5 on 4.2.1986. Learned Magistrate postponed the issue of summons and found it fit to enquire IO & Doctor. Thereafter based on the evidence, he ordered for issue of summons by his order dated 10.2.1986, and the case was registered as C.C.No.1383/1986. 7. As against registration of the criminal case and order of issue of summons the accused filed Criminal Revision Petition before this Court and this Court by its order dated 27.1.1987 allowed the Criminal Revision Petition, set aside the order of issue of summons and remanded the matter to the Learned Magistrate for examination of other witnesses. After remand, PW.6-Anuradha and Doctor I.M.Nataraj were examined on 28.6.1987 and on 7.7.1987 respectively. Thereafter, again further statement of the Complainant was recorded on 6.9.1988 and by order dated 14.2.1989, Learned Magistrate ordered for issue of summons. As against the said order, Crl.P.No.230/1989 was filed by the accused. The order of issue of process was again set aside by order dated 12.9.1984 with a direction to the Learned Magistrate to re-consider the same in accordance with law. 8. On 29.10.1994, Learned JMFC., Gulbarga on consideration of the material produced by the Complainant, dismissed the complaint. Being aggrieved by the said order, Complainant filed Crl.R.P.No.468/1995 before this Court. The order of issue of process was again set aside by order dated 12.9.1984 with a direction to the Learned Magistrate to re-consider the same in accordance with law. 8. On 29.10.1994, Learned JMFC., Gulbarga on consideration of the material produced by the Complainant, dismissed the complaint. Being aggrieved by the said order, Complainant filed Crl.R.P.No.468/1995 before this Court. This Court by order dated 9.4.1996, allowed the Revision Petition and directed the Learned Magistrate to issue process under Section 204 of Cr.P.C. The accused being aggrieved by the order of this Court, preferred SLAP No. 2451/1996 and the said SLAP No. 2451/1996 was dismissed by the Supreme Court by order dated 10.9.1996. 9. Since the offences alleged against the accused was the one punishable under Section 302 of IPC, the Learned Magistrate having no jurisdiction to try the same committed the matter to the Sessions Judge. Learned Sessions Judge heard the parties before charge and by the impugned order dated 4.8.1999, Learned Sessions Judge has directed for framing charge for the offence punishable under Sections 147, 148, 302 read with Section 149 of IPC. It is this order which has been called in question by the accused before this Court. 10. Sri A.H. Bhagavan, Learned Counsel appearing for the petitioner submitted that to pass an order for framing charges, Learned Sessions Judge is required to satisfy himself that there are sufficient ground to proceed against the accused. If he satisfies that there are no sufficient ground to proceed, Learned Sessions Judge invoking the provisions of Section 227 of Cr.P.C., is required to discharge the accused. He further submitted that framing of charge under Section 228 of Cr.P.C., is based on the presumption that the accused have committed an offence alleged against them. Requirement of Sections 227 & 228 of Cr.P.C., is that there must be sufficient ground of proceed against the accused and that material, if not contraverted must resulted in conviction of an accused. This aspect of the matter has not been considered by the Learned Sessions Judge and submitted that the Learned Sessions Judge mechanically has proceeded to order for framing charge on the sole ground that PW.1-Complainant; PW.2-Son of the Complainant; PW.7-Doctor, PW.6-Complainant have prima-facie stated in their evidence of the alleged offence and that is sufficient ground to proceed against the accused. 11. 11. He submitted that the Learned Judge has omitted to notice the important undisputed fact that for the same offence, the trial was conducted against 11 accused, who were charge sheeted by the CBI and in the said trial, PW-6 (in this case) was the Complainant and he was examined as PW-1. The Doctor PW-7 was PW-34 in the said trial. PW-1 is PW-53, PW-2 is PW-52. Their evidence was lead by the prosecution and based on the said evidence, the Learned Sessions Judge in S.C. No.2/1986 by his Judgment dated 4.5.2002 has acquitted accused Nos. 2, 3, 4, 6 to 11 for the offences punishable under Sections 147, 148, 302 read with Section 149 of IPC; convicted accused Nos.2 to 4 and 6 to 11 for the offences punishable under Sections 120-B & 201 of IPC. He submitted that no trial was conducted against A1 and A5. He further submitted that being aggrieved by the said Judgment, the present complainant herself had filed a Criminal Revision Petition No.335/2003 and the accused, who are convicted for the offences punishable under Sections 120-B and 201 of IPC had also filed Crl.A.No.823/2002. This Court by common Judgment dated 16.4.2008, allowed Criminal Appeal filed by the accused and dismissed the Criminal Revision Petition, interalia acquitting accused Nos.2 to 4 and 6 to 11 from the offences punishable under Sections 147, 148, 302, 149, 120-B and 201 of IPC. He further submitted that as against the common Judgment of this Court, the present Complainant has filed a Special Leave to Appeal (Crl) Nos. 3700-3701/2009 and the said matter is pending before the Apex Court. 12. Learned Counsel for the petitioner submitted that in respect of the very same offence, a trial has been conducted and ended in acquittal of 11 accused. In so far as the present accused in concerned, the Complainant who is examined as PW-53 and her son, who is examined as PW-52 in the said trial have stated the very facts before the Learned Sessions Judge and the Learned Sessions Judge considering their evidence has acquitted the accused. In so far as the present accused in concerned, the Complainant who is examined as PW-53 and her son, who is examined as PW-52 in the said trial have stated the very facts before the Learned Sessions Judge and the Learned Sessions Judge considering their evidence has acquitted the accused. Thereafter, this Court on re-appreciation of the entire evidence including the evidence lead by the Complainant, her son and also PW-1, who is PW-6 and PW-34, who is PW-7 in this case, whose evidence was also considered by the Trial Court as well as this Court and the accused having acquitted from the offence question of framing charge against this accused does not arise. 13. The present private complaint in law is not maintainable. More so, for the offences punishable under Section 147, 148 302 read with Section 149 of IPC. He submitted that there cannot be two parallel trials for the same offence. He also submitted that even assuming that the present accused is not charge sheeted. However, the entire allegation in the complaint was in the form of evidence as PW-52 and PW-53 before the Trial Court and the Trial Court having been considered and having found that the said material is not sufficient to proceed against the present accused in the said case and thereafter having acquitted, and the said judgment confirmed, Learned Sessions Judge has no jurisdiction to conduct the trial against this accused for the same offence. He also submitted that when the Judgment of acquittal was passed by the Trial Court, confirmed by this Court, the procedure does not provide for conducting another separate trial in respect of the same crime. 14. He also submitted that when the Judgment of acquittal was passed by the Trial Court, confirmed by this Court, the procedure does not provide for conducting another separate trial in respect of the same crime. 14. Apart from the merits, he also submitted that the allegation against this accused as per the complaint, sworn statement and the statement witnesses recorded in this case, only alleges that this accused was present at the time of incident, this accused instigated the other accused and if this is the only allegation based on which a charge has to be framed for the offences punishable under Sections 147, 148, 302 read with Section 149 of IPC, he submitted that such a charge cannot be framed as no offence either under Section 147, 148, 302 read with Section 149 of IPC could be alleged against this petitioner, when the accused against whom allegation of Section 302 read with Sections 147, 148, 149 of IPC was alleged have been acquitted. 15. In this regard, he referred to the provisions of Section 147 of IPC and submitted that the requirement of Section 147 is as follows:- “Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” Rioting is defined under Section 146, which means:- “Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly is guilty of the offence of rioting”. 16. 16. He further submitted that “Unlawful assembly “is defined under Section 141 of IPC as follows:- “An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is- First.-To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second.-To resist the execution of any law, or of any legal process; or Third.-To commit any mischief or criminal trespass, or other offence; or Fourth.-By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.-By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.’ Explanation.-An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” 17. By referring to the provisions of Sections 141, 146, 147 and 148, he submitted that the minimum that is required for constitute an offence under Section 147 is that there should be an unlawful assembly and that in the said unlawful assembly the accused must be member and the members of the said unlawful assemble had the common object of commission of crime. He also referred to Section 149 and submitted that, to punish an accused under Section 149 of IPC, he must be a member of an unlawful assembly and had a common object. For the offences punishable under Sections 147, 148 and 149 of IPC, the requirement is that there should be an unlawful assembly and the accused must be a member of said unlawful assembly and had a common object with the other members of the unlawful assembly. Reading of the complaint, sworn statement and other material, even it is not contraverted, even if it is accepted as it is, it only shows that the accused had instigated other members of the unlawful assembly to commit a crime. Reading of the complaint, sworn statement and other material, even it is not contraverted, even if it is accepted as it is, it only shows that the accused had instigated other members of the unlawful assembly to commit a crime. He submitted that assuming that they are all members of unlawful assembly and they had a common object of commission of an offence, but to constitute an offence there must be 5 or more persons involved in the offence, to attracts Sections 145, 146, 147 and 148 of IPC. 18. In this case, even according to the Complainant this accused is instigated other accused, who were accused in S.C.No.2/1986 and all of them have been acquitted from the offences punishable under Sections 147, 148, 302 read with Section 149 of IPC vis-a-vis, the prosecution having failed to prove that there was an unlawful assembly and they were the numbers of the unlawful assembly and they had the common object of commission of an offence, The charge for offences punishable under Sections 147, 148, 302 and 149 of IPC cannot be framed as against the petitioner, as he alone cannot form an unlawful assembly, nor he cannot become a member of unlawful assembly nor he could be any common object, unless the Complainant point out that there are other accused person along with the petitioner being a member of an unlawful assembly. If the allegation in the complaint do not reveal, who are the other accused. Even if it is reveals, but they being already acquitted by the Trial Court and confirmed by this Court, they cannot be arrayed or alleged as an accused only to prosecute the petitioner. He further submitted that the allegation against the petitioner is not that he assaulted or committed a murder. Even assuming that he has instigated by the other accused, who committed the offence under Section 302 of IPC have been as not guilty of the said offence and if the Trial Court and this Court having held that the prosecution has failed to prove the offence punishable under Section 302 of IPC against them, no charge could be framed against this petitioner. Though the allegation in the complainant reveals that there was earlier trial, the Learned Sessions Judge in this case without looking into the provisions of Sections 147, 148, 302 & 149 of IPC has ordered for framing charge for the said offence. 19. The purpose of Section 227 of Cr.P.C. is to find out as to whether there are sufficient ground, in the sense that the material produced by the prosecution shows sufficient grounds to proceed against the petitioner and such material, if not contraverted should result in conviction. When the accusation itself could not be made against the petitioner for the alleged offences, question of framing of charge by the Sessions Judge is highly erroneous and totally contrary to the allegation made in the complaint. He submitted that looking from any angle, the complaint should not have been entertained, even if entertaining the complaint, question framing of charges does not arise. 20. In this case, it being a private complaint, the sworn statement, the statement of witnesses adduced by the Complainant do not reveal that this petitioner alone could be prosecuted for the offence alleged against him and if the prosecution of this petitioner is possible on the basis of allegation, it means that there is no sufficient ground to proceed against the accused and if there are no sufficient ground, under Section 227 of Cr.P.C., requires that the Learned Sessions Judge should discharge the accused from the alleged offences, however the Learned Sessions Judge has failed to invoke the provisions of Section 227 of Cr.P.C., fact that the Learned Session Judge in S.C.2/86 has not either ordered for further investigation or for adding any accused clearly establish that the material which was available was not sufficient to proceed against any other person. If the Learned Sessions Judge in the trial in S.C.No.2/1986 has found that there is no material to proceed against this accused, conducting trial against this accused in a private complaint would only means sitting over the judgment of another Session Judge. He submitted that the order impugned not only suffers from illegality but also from irregularity and it is one without jurisdiction. 21. He submitted that the order impugned not only suffers from illegality but also from irregularity and it is one without jurisdiction. 21. Per contra, Sri Ustad Sadat Hussain, Learned Counsel appearing for the Complainant submitted that the incident had taken place on 14.2.1984 at 10.30 P.M. First information reached the police at 1.15 A.M. On 15.2.1984, a charge sheet was filed, in when the name of the person accused (K. Narayan) was not included in the list of accused and when the said fact came to the knowledge of the Complainant on the basis of the legal advise given to her, she has filed private complaint on 25.9.1985 itself. He submitted that the private complaint against the accused, who is not charge sheeted, is maintainable under Section 200 of Cr.P.C. There is no error in filing of the complaint. He further submitted that the matter come up before this Court twice and once before the Apex Court. As far as the Complainant is concerned, complainant has taken the steps immediately i.e., after charge sheet was filed in S.C.No.2/1986 and the private complainant was not against the accused, who were charge sheeted. It was only against the accused who was charge sheeted, as such the Complainant was perfectly is in accordance with Section 200 of Cr.P.C. 22. He also referred to the order of this Court in Crl.R.P. No.468/1995 dated 9.4.1986 and submitted that while considering as regards to issue of summons, this Court on elaborate consideration of the material produced by the complainant has found that there is a prima-facie case to proceed against the accused and ordered for issue of summons. Even though SLP was filed against the said order, the same came to be dismissed. This Court having been found that there is prima-facie material to proceed against the accused necessarily the material which was produced is also sufficient to frame the charge. He further submitted that to support the case of Complainant, apart from her sworn statement-statement being recorded she has examined of PW-2 to PW7 and all of them have supported the case of Complainant. He further submitted that at the stage of framing charge this Court will not sit in an appeal or in appreciation of evidence. He further submitted that to support the case of Complainant, apart from her sworn statement-statement being recorded she has examined of PW-2 to PW7 and all of them have supported the case of Complainant. He further submitted that at the stage of framing charge this Court will not sit in an appeal or in appreciation of evidence. It only looks into the prima-facie material to find out whether the trial could be proceeded against the accused and at this stage, the Learned Sessions Judge is not required to assess the evidence to find out whether the accused could be convicted or not? He referred the provisions of Sections 227 & 228 of Cr.P.C., and submitted that the Learned Sessions Judge for the purpose of invoking Section 228 of Cr.P.C., for framing of charge has referred to the statements of PW.1-wife of the deceased evidence, statement of PW.2-son of the Complainant, statement of PW.6-Complainant in earlier case, PW.7-Doctor and other witnesses, which show that the offence was committed at the instance of accused and if this material is available, the Learned Sessions Judge taking into consideration this material has rightly ordered for framing against the accused. 23. He further submitted that the Complainant has not filed a complaint after the Trial Court acquitted the accused. But she has taken steps as early as possible i.e., immediately after the charge sheet was filed. However, judicial proceedings took considerable time and he further submitted that since this matter was pending for quite some time and during which time the trial was concluded. The complainant did not thought it fit to make an application, the Sessions Case No.2/1986. He further submitted that if there is a police case and private complainant, no doubt, in terms of Section 210 of Cr.P.C., both the cases could be tried together. Nevertheless, Learned Sessions Judge having not invoked the provisions of Section 319 on the ground that the private complaint is pending. In the present case, Learned Sessions Judge having considered all the material has found that there is sufficient material to proceed against the accused. 24. He also submitted that acquittal of the other accused would not in any way affect the prosecution of the present accused. He was not the accused in the other trial and it will not have any effect or bearing on the present trial. 24. He also submitted that acquittal of the other accused would not in any way affect the prosecution of the present accused. He was not the accused in the other trial and it will not have any effect or bearing on the present trial. In this regard, he also submitted that irrespective of the acquittal of the other accused, the trial can be conducted against the present accused. He strongly argued on the question of jurisdiction of this Court and the revisional power and submitted that scope of revision being limited, the Court need not go into the appreciation of the material produced by the Complainant to find out whether, at this stage the said material is sufficient to convict or not. This Court only to find out whether the Trial Court is justified in passing the order of framing charge on the material placed before him, even if there are any discrepancies same has to be considered only during the trial and not at this stage. 25. Since the matter is pending before the Apex Court as against the other accused, it cannot be constrained that a charge for the offences punishable under Sections 147, 148, 302 read with Section 149 of IPC cannot be framed. If the allegations against accused, prima-facie discloses the offence and if the material is sufficient, the Learned Sessions Judge was justified in ordering for framing charge and submitted merely because the interpretation of Sections 147, 148 and 149 of IPC requires an unlawful assembly does not ipsofacto vitiate the prosecution Case. Such argument could be made only after the evidence is lead by the prosecution. 26. In the light of the submissions made by both the Learned Counsel, the points that arise for consideration are as under:- .(1) Whether the order of the Learned Sessions Judge for framing charge for the offences punishable under Sections 147, 148, 302 read with Section 149 of IPC is sustainable? .(2) Whether, after the acquittal of all other accused, other than the accused in the private complaint, still a trial could held against this accused for the offences punishable under Section 147, 148, 302 read with Section 149 of IPC? .(3) Scope of enquiry under Section 226 and 228 of Cr.P.C.? (4) Whether order is revisible? 27. .(2) Whether, after the acquittal of all other accused, other than the accused in the private complaint, still a trial could held against this accused for the offences punishable under Section 147, 148, 302 read with Section 149 of IPC? .(3) Scope of enquiry under Section 226 and 228 of Cr.P.C.? (4) Whether order is revisible? 27. Before considering the scope of the power of this Court under Section 397 of the Cr.P.C. it is just and necessary to narrate the facts which are not in dispute. 1. 28. It is not in dispute that as many as 11 accused other than the accused herein were charge sheeted by the C.B.I. CIU, Police, New Delhi for the offences punishable under Sections 120-B, 147, 148, 302, 201 read with Section 149 of I.P.C. As the accused No.1 (Doddappa) and A-5 (Tulijasingh) were dead before commencement of trial, the trial was conducted only against accused Nos.2, 3, 4, 6, 7, 8, 9, 10 and 11 in S.C. No.2/86 before the Trial Court. 29. In S.C.No.2/86, the prosecution to prove its case had examined as many as 64 witnesses namely PW-1 to PW-64, marked Ex. P-1 to P-186 and also produced M.O.-1 to M.O.-25. On the defence side, though no oral evidence was led, however Ex. D-1 to D-55 were marked. Learned Principal Sessions Judge, Gulbarga on appreciation of the evidence, acquitted all the accused i.e. accused Nos.2, 3, 4, 6, to 11 for the offences punishable under Sections 147, 148, 302 read with Section 149 of I.P.C. However, they were convict for the offences punishable under Sections 120-B and 201 of I.P.C. It is also not in dispute that the judgment in S.C.No.2/86 dated 04.05.2002 was called in question by the accused in so far as their conviction for the offences punishable under Sections 120-B and 201 of I.P.C. Whereas the complainant also filed Criminal Revision Petition No. 335/2003. It is also not in dispute that this Court by its common Judgment dated 16.04.2008 allowed the Criminal Appeal No. 823/2002 filed by the accused therein and acquitted them from the offences punishable under Section 120-B and 201 of I.P.C. Whereas the Criminal Revision Petition No.335/2003 filed by the present complainant seeking to set aside the judgment of acquittal passed by the Learned Sessions Judge, acquitting the accused for the offences punishable under Section 147, 148, 302 read with Section 149 of I.P.C. was dismissed. 30. During the trial of S.C.2/86, PW-1 who was complainant namely Anna Rao S/o Madivalappa Patil, PW-34-Dr. T.M. Nagaraj, PW-52 – Kranti Kumar S/o Sidramesh, PW-53-Annapurna W/o Sidramesh were examined in the said case. The complainant herein in support of the private complaint, her sworn statement was recorded as PW1 statement of Kranti Kumar statement was recorded as PW-2, statement of Anna Rao S/o. Madivalappa Patil was recorded as PW-6 the statement of Dr. T.M. Nataraj was recorded as PW-7. In S.C.No. 2/1986, the Learned Sessions Judge had considering the evidence of all these witnesses and more so, the evidence of PW-52 and PW-53 i.e. the evidence of complainant and her son and has acquitted the accused for the offences punishable under Section 147, 148, 302 read with Section 149 of I.P.C. No doubt, while considering the evidence of PW-52 and PW-53 Learned Judge at Para-73 of the judgment rendered in S.C.No.2/1986 has observed that S.P.Narayan, the present accused is not arrayed as accused in the said case and the private complaint has been filed by PW-53 i.e. the present complainant. However, Learned Sessions Judge did considered these evidences for the purpose of disposing of the case as against the accused in the said case. 31. Being aggrieved by the judgment of acquittal, the complainant herself has filed revision petition before this Court, as stated above in Crl.R.P.No.335/2003. However, Learned Sessions Judge did considered these evidences for the purpose of disposing of the case as against the accused in the said case. 31. Being aggrieved by the judgment of acquittal, the complainant herself has filed revision petition before this Court, as stated above in Crl.R.P.No.335/2003. This Honourable Court on re-appreciation of the evidence including the evidence of complainant and her son has observed as under:- “Mere proof of motive to the effect that there was enmity between Siddaramesh and the Police Officers as he has published certain articles pertaining to the conduct of Police Officers and had also filed complaint against the Police Officers would not by itself conclusively prove the guilt of the accused as no amount of suspicion can take place of proof and further, having regard to the fact that PW-53 who is wife of Siddaramesh-the deceased and PW-52 who is the son of Siddaramesh have stated in their evidence that when they made enquiry with Siddaramesh when he was in the hospital taking treatment for the injuries sustained by him, he informed that it was S.P.Narayan who caught him, assaulted through seven-eight persons and the name of the accused in this case has not been mentioned and having regard to the fact that according to the statement given by accused No.8 under Section 164 Cr.P.C., before PW-61 it was accused No.1 who assaulted Siddaramesh and caused fatal injury and accused No.1 is dead. The Trial Court has held that there is no material to show formation of unlawful assembly, the Trial Court has proceeded to hold that the prosecution has failed to prove guilt of the accused of having committed the offences punishable under Sections 147, 148, 302 IPC and in view of the finding on point No. 1 and holding that the statement given by accused No.8 as per Ex.P-186 under Section 164 Cr.P.C., is self exculpatory and not a confession admissible under Section 30 of the Evidence Act against the co-accused. It is clear that there is no material whatever produced by the prosecution to prove that it was the accused who assaulted and caused murder of Siddaramesh and wherefore, it is clear that the finding of the Trial Court that the prosecution has failed to prove offence alleged against the accused punishable under Sections 147, 148 and 302 IPC, is justified and does not call for interference in revision.” 32. This Court, while considering the evidence of the complainant and her son and also considering the finding of the Trial Court and the material has confirmed the finding of the Trial Court as regard to the acquittal of the accused there in, and has further by the same judgment has reversed the conviction of the accused for 120-B and 201 of I.P.C. from this judgment it is not in dispute that, the other accused referred by the complainant, according to whom the said accused committed the offence at the instigation of this accused have been acquitted from all the offences alleged against them, if that is so they cannot be tried again for same offence, nor the complainant has made them as party accused in her private complaint. In the light of the above, and also in the light of the acquittal of the other accused there is no ground to frame the charge. The discussion of the evidence of the witnesses and consideration of the same would not make out sufficient grounds to proceed against the present accused. 33. No doubt, the common judgment rendered by this Court is now pending in SLAP before the Apex Court. However the pendency of case in Supreme Court cannot be a ground to frame charge. Even if the matter is pending before the Supreme Court, the said accused are not parties in this case. Private complaint is filed only against one accused namely K. Narayan, the petitioner herein. In the private complaint as stated above, the allegation is that, when the complainant Smt. Annapurna W/o. Sidramesh visited the hospital, the deceased was alive and he informed her that the accused K. Narayan instigated the other accused to commit murder and to not leave him. It is also alleged that this accused threatened her and her family members alleging that will be meted with the same consequences if the complaint is filed against him. This Complainant in the S.C.No.2/86 as PW-53 has narrated the event that transpired between her and the deceased. Both the Sessions Court as well as this Court did considered the evidence of PW-53 the complainant, PW-52 her son, PW-1 and PW-34 who were also examined along with the complainant in this case also. This Complainant in the S.C.No.2/86 as PW-53 has narrated the event that transpired between her and the deceased. Both the Sessions Court as well as this Court did considered the evidence of PW-53 the complainant, PW-52 her son, PW-1 and PW-34 who were also examined along with the complainant in this case also. On appreciation of the evidence, the Trial Court has acquitted those accused and it is not the case of the complainant that the accused assaulted the deceased and as a result of which the deceased died or accused caused any injury to the deceased. Allegation in the private complaint and in her evidence, only reveals that this accused instigated the other accused to commit murder of the deceased. 34. This case arise out of the private complaint, the Learned Sessions Judge has considered the sworn statement of the complainant who is examined as PW-1, statement of her son PW-2, statement of one witness PW-3, PW-4 the I.O., PW-5 Practicing Advocate, PW-6 the original complainant in the Session Case, PW-7 the doctor who was examined as PW-3 in the Session Case and based on these material, Learned Sessions Judge has proceeded to pass the impugned order for framing charge for the offences punishable under Section 147, 148, 302 read with Section 149 of I.P.C. against the petitioner herein who was not accused in the earlier Sessions Case No. 2/1986. 35. Whether in the light of the acquittal of the other accused in S.C.No.2/1986, the Learned Sessions Judge could frame the charge for the offences punishable under Sections 147, 148, 302 read with Section 149 of I.P.C. against the petitioner is the question requires to be considered in this revision petition. It is useful to refer to the said provisions. Section 147 of I.P.C. deals with the punishment for rioting in as much as. 36. “whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extent to two years, or with fine, or with both.” 37. Rioting is defined under Section 146 Which means “whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” 38. Rioting is defined under Section 146 Which means “whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” 38. Definition of rioting necessarily requires that an unlawful assembly or a member of unlawful assembly prosecuting the common object of such assembly. Unlawful assembly is also defined under Section 141 of I.P.C. which means 39. “An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is i. To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any Public Servant in the exercise of the lawful power of such Public Servant; or ii. To resist the execution of any law, or of any legal process; or iii. To commit any mischief or criminal trespass, or other offence; or .iv. By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or .v. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do”. 40. A reading of Section 141, 146 and 147 of I.P.C. makes it abundantly clear that in order to attract the provisions of Section 147 an unlawful assembly or a member of an unlawful assembly in prosecution of the common object of the assembly commits an offence, is require to hold him guilty of an offence punishable under Section 147 of I.P.C. 41. Section 148 deals with rioting armed with deadly weapon i.e. not by unlawful assembly with a common object of prosecuting the object of such assembly armed with deadly weapon is punishable. 42. Section 149 deals with offence committed by every member of unlawful assembly guilty of an offence committed in prosecution of common object. Section 148 deals with rioting armed with deadly weapon i.e. not by unlawful assembly with a common object of prosecuting the object of such assembly armed with deadly weapon is punishable. 42. Section 149 deals with offence committed by every member of unlawful assembly guilty of an offence committed in prosecution of common object. Offence that is committed by member of unlawful assembly in order to prosecute the common object of the unlawful assembly will be guilty of that offence. Reading of provisions of Section 147, 148 the common feature is that, there has to be an unlawful assembly and the accused must be member of an unlawful assembly. 43. In this case, in the complaint, complainant alleges that, there was enmity between the deceased Siddaramesh and the Police Department as he was writing articles against the police of their atrocities on the public. In view of the same, police filed several cases against him and had went to the extent of listing him in rowdi sheet. In this regard, the deceased had made several complaints including complaint to the then MLC Khadri Shamanna, Governor of Karnataka, Chief Minister, IG etc. Complainant also alleges that on 14.02.1984 while she was at home along with other family members, she received phone call from PW-1 in S.C. No.2/1986, who is examined as PW-6 in this case that her husband has been stabbed and he is in hospital and she went to the hospital. In the hospital, the deceased was in casualty room where he was still alive and he informed that “[KANNADAM] “. 44. She also alleged in the private complaint that, accused came to the hospital and informed her that if she files complaint against him, the complainant and her family members will also face same consequences like her husband. On this allegation, she had filed a complaint on 25.10.1985. If the complaint is read as it is, it discloses that neither the present accused is the member of unlawful assembly or he instigated the other accused to commit crime. On this allegation, she had filed a complaint on 25.10.1985. If the complaint is read as it is, it discloses that neither the present accused is the member of unlawful assembly or he instigated the other accused to commit crime. Now the Learned Sessions Judge has found that, case alleged against the accused is one punishable under Section 147, 148, 302 read with Section 149 of I.P.C. Fact that other accused who were charge sheeted namely accused Nos.1 to 11 and against accused Nos.2 to 4 and 6 to 11 trial was held and this Court had already acquitted all the accused not only from the offences punishable under Sections 147, 148, 302 read with Section 149 of I.P.C. but also from the offences punishable under Sections 120-B and 201 of I.P.C. Complaint has not arrayed or made any person other than the present accused-K. Narayan in her private complaint. In view of the acquittal of the other accused from the alleged offence, whether the Learned Sessions Judge was justified in ordering to frame charge against the present petitioner for the offences punishable under Sections 147, 148, 302 read with Section 149 of I.P.C?. 45. Admittedly, allegation in the private complaint and the statement given by the complainant during the trial of the case in S.C.No.2/1986 are more or less is the same. Apart from the fact that the same material was available before the Learned Sessions Judge and the Learned Sessions Judge having not found that there is any justification to issue summons to the present accused has conducted the trial only against those accused and passed the judgment. Even this Court after having noticed in the evidence of the complainant, has not found to issue summons to this accused. Even otherwise also, to form an unlawful assembly as required under Section 141 there has to be minimum 5 persons or more to attract the provisions Section 147. Even this Court after having noticed in the evidence of the complainant, has not found to issue summons to this accused. Even otherwise also, to form an unlawful assembly as required under Section 141 there has to be minimum 5 persons or more to attract the provisions Section 147. The accused must be a member of that said unlawful assembly and must be prosecuting the common object of the said unlawful assembly and so also under Sections 148 and 149, if there is no material in the complaint or in the sworn statement of the complainant or in the statement of the witnesses examined by the complainant to show that there are any other accused along with present accused who can form unlawful assembly, in my view the question of framing charge for the offences punishable under Sections 147, 148, 302 read with Section 149 of I.P.C. does not arise. 46. As far as the allegations of causing murder is concerned, complainant has not alleged that this accused assaulted not the overt act is alleged against him. The only piece of evidence available to implicate this accused is the confession or statement or an alleged dying, declaration of the deceased made before the complainant in the hospital. On perusal of the said statement, it reveals that the deceased (husband of the complainant) informed the complainant that this accused was present when incident took place and he instigated the other accused to kill the deceased and there is no allegation that this accused-petitioner assaulted the deceased. If the other accused have been acquitted from the offence alleged against them and today if they are not the accused and if the present accused only to be prosecuted, it is not known as to how the Learned Sessions Judge can frame the charges for the offences punishable under Section 147, 148, 302 read with Section 149 of I.P.C. The ingredients of Section 147, 148, 149 are not present in the private complaint filed by the complainant. To attract the provisions of Section 302 also there is no allegation that this petitioner intentionally committed any crime. 47. The Learned Sessions Judge having noticed that the parallel proceedings on the basis of the police report went on before the Sessions Court in S.C.No.2/86 without even considering them by the impugned order dated 04.08.1999 has passed the impugned order to frame charge against the petitioner herein. 47. The Learned Sessions Judge having noticed that the parallel proceedings on the basis of the police report went on before the Sessions Court in S.C.No.2/86 without even considering them by the impugned order dated 04.08.1999 has passed the impugned order to frame charge against the petitioner herein. 48. In case if there is a police report and there is also a private complaint, the provisions of Section 210 of Cr.P.C. requires that, “if the police report dos not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this code.” If there are two proceedings one on the basis of police report and another on the basis of a private complaint, Section 210(1) contemplates that, in case if the investigation is under progress, he shall stay the enquiry, proceedings on the basis of the private complaint and call for the report of the police. No doubt, in this case, as on the date of filing of the private complaint, charge sheet was filed and this accused was not arrayed as accused in the charge sheet filed by the police. However, ends of justice would have been met if this private complaint was brought to the notice of the Learned Sessions Judge who was dealing with the trial in S.C.No.2/1986. 49. Apart from this, provisions of Section 319 confers power on the Trial Judge either during enquiry or in the evidence, if the Learned Judge finds that there are such other persons who are not arrayed as accused, he can issue summons to such person if he finds prima-facie material against such person. However, the very material which was before the Learned Judge and the Trial Judge having not found it fit to issue summons and having rendered the judgment against the other accused and the allegation in the private complaint which do not constitute offence under Sections 147, 148, 302 read with Section 149 of I.P.C, there is no possibility of convicting the present petitioner even on the material which is produced by the complainant even if it is not contraverted. 50. 50. This is the revision petition under Section 397 of the Cr.P.C. and this Court has power to call for and examine the records of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Correctness, legality and propriety of the order includes that any order passed contrary to rule or any order that is illegal, this Court has revisional power to call for and set aside such orders. 51. If the material produced before the Learned Sessions Judge is insufficient even to frame the charge let alone conviction on the basis of such material, it would be futile exercise of the Sessions Judge to frame the charge. The scope of Section 227 of Cr.P.C. makes it clear that the Learned Trial Judge while framing the charge must be satisfied by himself that there are sufficient grounds to proceed against the accused. Sufficient grounds though does not mean to reappreciate the evidence or meticulous scrutiny of the evidence. But the material even if it is not contraverted if it is possible to convict the accused in such case Court can proceed to frame the charge. As observed above, entire material even if it is considered, though such material was considered by the Learned Sessions Judge in the trial against the other accused, even on second look of the entire material, there is no possibility of not only framing charge, even after framing charge, there is no possibility of conviction. If that is so, this Court in exercise of revisional power can set aside irregular and illegal orders. 52. No doubt, the accused in this case had filed a Criminal Revision Petition in the year 1999 and this matter has been pending since 1999. Learned Counsel appearing for the complainant submitted that, because of the pendency of this matter complainant did not take appropriate steps in the trial which was pending then. As this matter was pending before this Court and she was awaiting for the order, however, the reasons beyond the control the matter was not disposed of by this Court and now the main matter is before the Apex Court. As this matter was pending before this Court and she was awaiting for the order, however, the reasons beyond the control the matter was not disposed of by this Court and now the main matter is before the Apex Court. Even if the complainant still finds justification in her case it upto her to take such steps in accordance with law. No opinion is empressed on the same. However, in my opinion, neither the material produced by the complainant or otherwise is a case for framing charge and the Learned Sessions Judge has committed a grave error in passing the order without even looking into the offence alleged against the accused and without even appreciating whether such a charge could be framed against the accused. Hence in the circumstances this revision is required to be allowed. Accordingly petition is allowed, the impugned order in S.C.No.36/1997 dated 04.08.1999 is hereby set aside.