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2017 DIGILAW 1865 (RAJ)

SURESH CHANDRA v. STATE OF RAJASTHAN

2017-08-18

PUSHPENDRA SINGH BHATI

body2017
ORDER : Pushpendra Singh Bhati, J. The petitioners have preferred this misc. petition under Section 482 Cr.P.C., 1973 against the order dated 19.03.2016 passed by learned Civil Judge & Judicial Magistrate, Ladnu, in criminal original case No. 8/2013 by which learned Judge has rejected the application of the present petitioner filed under section 216 of the Cr.P.C., 1973 and ordered to proceed further in the matter for the offences under Sections 147, 148, 447/149 IPC and to quash and set aside the same. 2. The police filed charge sheet against the present petitioners. The cognizance was taken and charges were framed under Section 147, 148, 149, 323, 325 & 307 IPC and also under section 3(1)(X)(2)(V) of SC/ST Act and the same was challenged in S.B. Criminal Misc. Petition No. 634/2014 before this Court which discharged the petitioner under the SC/ST Act vide order dated 11.07.2017. The compromise was settled between the parties and the offence under Section 323/149, 325/149 and 447 IPC vis-a-vis Pema Ram was taken on record and after such compromise, the charge for the offence under Sections 147, 148/447 IPC being not amenable to compromise was maintained. 3. Thereafter the petitioner moved an application under Section 216 Cr.P.C., 1973 which was dismissed by the learned court below vide order dated 10.01.2016 on the account of the fact that the compromise was not under Section 147, 148, 447/149 IPC and these offences are not comprisable and therefore, the same survives and the application was not maintainable under Section 216 Cr.P.C., 1973 4. Learned counsel for the petitioner has argued that since the unlawful assembly has been defined under Section 141 IPC and require assembly of minimum five persons for forming the unlawful assembly therefore, the offence prima facie is not made out on the face of it and thus, the offences need to be quashed and set aside. 5. Learned Public Prosecutor has opposed the submissions. 6. This Court has carefully seen the record of the case and heard arguments of learned counsel for the parties, the offence of unlawful assembly which is essential component of Section 147, 148 & 149 of IPC. 7. Section 141, 146, 147, 148 & 149 of IPC reads as follows: 141. Unlawful assembly. Learned Public Prosecutor has opposed the submissions. 6. This Court has carefully seen the record of the case and heard arguments of learned counsel for the parties, the offence of unlawful assembly which is essential component of Section 147, 148 & 149 of IPC. 7. Section 141, 146, 147, 148 & 149 of IPC reads as follows: 141. Unlawful assembly. - 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, 1[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. 146. Rioting. - 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. 147. Punishment for rioting. - 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. 148. Rioting, armed with deadly weapon. - Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 148. Rioting, armed with deadly weapon. - Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. - 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. 8. Thus, on the bare reading of Section 141, 146, 147, 148 & 149 of IPC, it is clear that the unlawful assembly has to be there for prima facie making of these offences. The present petitioners are only two persons who are facing charges. 9. In light of the aforesaid facts, the present petition is allowed and the impugned order dated 10.01.2016 is quashed and set aside and the criminal proceedings against the petitioners for the offences under Sections 147, 149, 447/149 arising out of criminal original case No. 08/2013 are also quashed and set aside and the petitioners are discharged from the offences. 10. The stay petition also stands disposed.