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PETITIONER: MAHADEVA SHARMA & OTHERS

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 21/04/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SARKAR, A.K. SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1966 AIR  302            1966 SCR  (1)  18

ACT: Criminal  Law-Alternative charges under s. 302 read with  s. 34 and s. 302  read  with 149 of the  Indian  Penal  Code-No charge under s.     147  or s. 148-conviction under  s.  302 read with s. 149-Legality.

HEADNOTE: The appellant,% were charged alternatively under s. 302 read with s.   149 and s. 302 read with s. 34 of the Indian Penal Code,  1860.  They were convicted under s. 302 read with  s. 149.  On the question whether the conviction was legal, when they were not charged and convicted under s. 147 or s. 148, HELD : It was not obligatory to charged the accused under s. 147 or S. 148 before S. 149 could be  utilized against them. [22D; 23] For  the  application of s. 149 there must  be  an  unlawful assembly.  If an offence is committed in prosecution of  the common object of that assembly or is such as the members  of the unlawful assembly know to be likely to be committed then whoever is a member of that assembly at the time the offence is committed, is guilty.  A charge under sections 143 or 147 is  not  a  condition  precedent  before  section.  149   is utilized,  because.  these are implied in  circumstances  in which  s. 1,49 is used, and must always be present when  the charge is laid for an offence like murder with the aid of s. 149.   There can be proof under s. 149, of the existence  of an  unlawful assembly of the common object and of  the  part played by that unlawful assembly or any of its members, same as  under  s.  143  or  s. 147 or  s.  148.   There  may  be additional  charges  under these sections to  guard  against failure of the charge for an offence read, with s. 149,  but the other charges cannot be regarded as condition precedent. [22 B-C; 23 C-D, H;24A]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  209 of 1962 and 3 of 1963. Appeals  by special leave from the judgment and order  dated

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August  30,  1962,  of the Patna High  Court  in  Government Appeal  No.  33  of 1959 and Cr.  Appeal  No.  392  of  1959 respectively. S.   P.  Varma,  for the appellants (in Cr.  A. No.  209  of 62). K.   K.  Sinha,  for  the appellants (in Cr.  A.  No.  3  of 1963). U.   P. Singh, for the respondent (in both the appeals). 19 The Judgment of the Court was delivered by Hidayatullah  J. In these two appeals by nine persons,  who, have  been convicted under s. 302/1149, Indian  Penal  Code, special.  leave is limited to one question of  law,  namely, whether  the  accused could be legally convicted  under  the above  sections  when they were not  charged  and  convicted under S. 147 or s. 148 of the Indian Penal Code ? It appears from  the judgment under appeal that there was a  difference of opinion on this point in the High Court at Patna and  the appeals  in the High Court were disposed of by a Full  Bench which  held  that  charges under ss. 147 and  148  were  not necessary before conviction under s. 302, Indian Penal  Code could be made with the aid of s. 149, Indian Penal Code. In  view  of  the limited nature of  the  appeals  only  the essential facts may be stated.  The person who lost As  life was  one  Misari  who was related to  some  of  the  accused persons.   In the past there were other incidents.  In  1955 one  Ajablal  was murdered and some of the  present  accused were  prosecuted  but  were  acquitted.   Subsequently,  one Baldeo  Sharma  was  murdered and some  of  the  prosecution witnesses  in this case were charged with that offence.   At the  time of the judgment under appeal (August 30, 1962)  an appeal  was  pending  in the Patna High  Court  against  the conviction of the accused in that case. The  present occurrence took place on April 24,  1958.   The prosecution case is that Misari was going in the morning  to call  laborers when he was attacked by the  appellants  with diverse weapons.  He died as a result of his injuries and  a case  was registered under s. 302, Indian Penal  Code.   The appellants were charged at the trial alternatively under  s. 302/149  and  302 /34, Indian Penal  Code.   The  Additional Sessions Judge, Monahyr convicted three of the  appellant,-, on  both  the charges, sentencing them to  imprisonment  for life  on the first charge only.  The remaining accused  were acquitted.   Appeals by those who were convicted and by  the State  Government against the acquittal of the  others  were heard  together and were disposed of by the common  judgment now  under appeal.  The appeal of the State  Government  was allowed  and  that  of  the  three  convicted  accused   was dismissed.   As  a  result all  the  original  accused  were convicted  under  s. 302/1.49, Indian Penal  Code  and  were sentenced  to imprisonment for life.  During the hearing  of the  appeals a point was raised by the State counsel in  the appeal  by the State that the trial was bad inasmuch  as  no charge  under  S.  147  or s.  148  had  been  framed.   The Divisional Bench thinking that the point might 21 only menaces the public peace or actually disturbs it.   The scheme of the Chapter may now be examined. Section  141 defines an unlawful assembly as an assembly  of five  or  more persons the common object of which  is  inter alia  to  commit an offence.  There are five  clauses  which describe  the many kinds of common objects which  render  an assembly  unlawful.   These clauses need not  be  reproduced here  for nothing turns on them in +,he present case.   Here we are concerned with the offence of murder and according to

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the  charge the common object of the accused who had  formed themselves  into  an assembly was to commit  the  murder  of Misari.   This common object has been held proved and  there can thus be no question that this was an unlawful  assembly. Continuing again with the scheme of the Chapter, we next see that  s.  142  says  that a person is  considered  to  be  a member  of  an unlawful assembly, if, being aware  of  facts which   render   any  assembly  an  unlawful   assembly   be intentionally  joins  that assembly or continues in  it.   A mere membership of an unlawful assembly is punishable  under S.  143.   Under  the next  section  heavier  punishment  is awardable  to a person who joins an unlawful assembly  armed with a deadly weapon or with anything which used as a weapon of  offence  is  likely to cause death.   Section  145  next provides  for a similar higher punishment for a  person  who joins  or continues in an unlawful assembly knowing that  it has  been  ordered to disperse.  These  sections  make  mem- bership  as such of an unlawful assembly punishable,  though in varying degrees. Section  146  then  defines the offence  of  rioting.   This offence  is said to be committed when the unlawful  assembly or any member thereof in prosecution of the common object of such  assembly  uses force or violence.  It may  be  noticed here that every member of the unlawful assembly is guilty of the  offence of rioting even though be may not have  himself used   force   or  violence.   There   is   thus   vicarious responsibility when force or violence is used in prosecution of the common object of the unlawful assembly.  The next two sections  prescribe punishment for the offence  of  rioting. Section  147 punishes simple rioting.  Section 148  punishes more  severely a person who commits the offence of  rioting, armed  with  a deadly weapon but the section  makes  only  a person who is so armed liable to higher punishment.  Section 149 then creates vicarious responsibility for other offenses besides rioting.  The section provides as follows :               "149.   Every  member  of  unlawful   assembly               guilty of offence committed in prosecution  of               common object.               22               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". For the application of the section there must be an unlawful assembly.  Then if an offence is committed in prosecution of the common object of that assembly or is such as the members of  the unlawful assembly know to be likely to be  committed then  whoever  is member of that assembly at  the  time  the offence  is committed is guilty.  The remaining sections  do not help in the present discussion. This  being the scheme, is it obligatory to charge a  person under  s.  147  or s. 148 before s. 149 can  be  utilized  ? Section 149 does not state this to be a condition  precedent for  its own application.  No other section prescribes  this procedure.  Sections 146 and 149 represent conditions  under which vicarious liability arises for the acts of others.  If force or violence is used by a member in the prosecution  of the common object of the, unlawful assembly every member  of the  assembly is rendered guilty of the offence  of  rioting and  is  punishable  for that offence  under  s.  147.   The offence  of rioting must of course, occur when  members  are

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charged  with  murder as the common object of  the  unlawful assembly.   Section 148 creates liability on  persons  armed with de;-Idly weapons and it is a distinct offence.  It need not  detain us.  If a person is not charged under s. 147  it does  not mean that s. 149 cannot be used.  When an  offence (such  as murder) is committed in prosecution of the  common object of the unlawful assembly or the offence is one  which the  members  of  the  assembly knew  to  be  likely  to  be committed  in prosecution of the common  object,  individual responsibility  is replaced by vicarious responsibility  and every person who is a member of the unlawful assembly at the time of the committing of the offence becomes guilty.  It is not  obligatory to charge a person under s. 143, or  s.  144 when  charging him with S. 147 or s. 148.  Similarly, it  is not  obligatory  to charge a person under s. 143 or  s.  147 when  charging  him for an offence with the aid of  s.  149. These  sections  are  implied.  It may be useful  to  add  a charge  under  s.  147  and 148  with  charges  under  other offenses of the Penal, Code read with s. 149. but it is  not obligatory to do so.  A person may join an unlawful assembly and be guilty under s. 143 or 147 or 148 but he may 23 cease to be its member at the time when the offence under s. 302  or  some other offence is committed.  He would  not  in that event be liable for the other offence for S. 149  would not apply to him.  The present case is not of that kind. The  fallacy in the cases which hold that a charge under  s. 147 is    compulsory  arises because they overlook that  the ingredients of s.   143  are  implied  in  s.  147  and  the ingredients of s. 147 are implied when a charge under s. 149 is included.  An examination of s. 141 shows that the common object  which renders an assembly unlawful may  involve  the use of criminal force or show of   criminal    force,    the commission of mischief or criminal trespass or    other offence, or resistance to the execution of any law or of any legal  process.  Offenses under ss. 143 and 147 must  always he  present  when  the charge is laid for  an  offence  like murder  with  the aid of s. 149, but the other  two  charges need not be framed -separately unless it is sought to secure a conviction under them.  It is thus that s. 143 is not used when the charge is under S. 147 or s. 148, and s. 147 is not used  when the charge is under S. 148.  Section 147  may  be dispensed with when the charge is under s. 149 read with  an offence under the Indian Penal Code. The charges that are framed against the appellants and which we  have  reproduced  earlier,  contain  all  the  necessary ingredients  to  bring home to each member of  the  unlawful assembly the offence of murder with the aid of s. 149.   The prosecution   has  proved  the  existence  of  an   unlawful assembly,  its common object which was murder of Misari  and the member-,hip of each of the appellants.  Nothing more was necessary.  of course, if a charge bad been framed under  S. 147  or  148 and that charge had failed against any  of  the accused  then s. 149 could not have been used  against  him. The  area  which  is  common  to ss.  147  and  149  is  the substratum on which different degrees of liability are built and there cannot be a conviction with the aid of s. 149 when there  is  no evidence of such substratum.  It  is  quite  a different thing to say that to lay down this substratum  one must frame first a charge under s. 143, then a charge  under s.  147  and  then a charge under s. 149.   The  last  named section is not dependent on the other.-, because the  others are implied in circumstances in which s. 149 is used.  There can  be proof under s. 1.49 of the existence of an  unlawful assembly,  of the common object and of the part  -played  by

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the  unlawful assembly or any of its members, same as  under s. 143 or S. 147 or s. 148.  There may be additional charges under these sections to guard against failure of the  charge for an offence 24 read with s. 149 but the other charges cannot be regarded as condition precedent. We agree with the conclusion of the Full Bench and therefore confirm the judgment under appeal.  The appeals will be dis- missed. Appeals dismissed. 25