Less than 5 persons may be charged for unlawful assembly if some of them are not identified and named: SC

The Supreme Court in the case of Mahendra & Anr. v/s The State of M.P. ruled that less than 5 persons may be charged for unlawful assembly if some of them are not identified and named.

The complainant had lodged a report against the appellants and 18 others on that basis FIR was registered and a charge­sheet was submitted against the appellants and 18 other accused persons under Sections 148, 294, 341/149, 325/149 (2 counts), 323/149 (4 counts), 324/149 and 427/149 of IPC. In the report it was stated by the complainant that he and his sons had gone to a village in order to lift the engine of a tractor and when they were coming back after lifting the engine in their tractor trolley, on the way 15­-20 persons who were armed with lathi and axe came there with a common object of eliminating them and started beating his son Bachna with lathi and axe by abusing him with filthy language.

The appellants, submitted that the chargesheet was originally filed against 20 persons and all of them faced trial and 17 out of 20 accused persons were acquitted by the learned Trial Court by judgment and order, no further appeal or revision was preferred by the prosecution against the judgment of acquittal passed by the Trial Court against those 17 accused persons who faced trial and 3 out of 20 accused persons were convicted for offence under Sections 148, 325/149 and 323/149 IPC and it is not the case of the prosecution that there were other unnamed/unknown persons who could not be traced/charged other than the persons who faced trial.

On the other hand, the respondent, contended that 20 persons were charge­sheeted who faced trial and thus merely because final conviction was of three accused persons under Sections 325 with the aid of Section 149 IPC, the requirement of Section 141 which contemplates unlawful assembly of five or more persons is being completely meted out and after the matter has been examined by the Court on merits upholding conviction of the appellants, it needed no interference by the Court.

The division bench of Justice Ajay Rastogi and Justice Abhay S. Oka noted that it may not be necessary that five or more persons necessarily be brought before the Court and convicted. Less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and unnamed. In the instant case the persons are specifically named by the complainant and against them, after the investigation, charge sheet was filed and all the 20 accused persons faced trial.

The court held that the judgment of the trial court convicting the appellants under Sections 148, 325/149 and 323/149 IPC, which came to be confirmed by the High Court under its revisional jurisdiction is thereby quashed and set aside.

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