Madhya Pradesh High Court
Dr. Abhay Ohari vs The State Of Madhya Pradesh on 9 September, 2025
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IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 9th OF SEPTEMBER, 2025
CRIMINAL APPEAL No. 4129 of 2025
DR. ABHAY OHARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Pratyush Mishra - Advocate for the appellant.
Shri Rajendra Kumar Suryawanshi-GA appearing on behalf of
Advocate General.
ORDER
This criminal revision is preferred challenging the order dated
18.03.2025 in special case No.28/2023 by exclusive Special Court
constituted under the SC & ST (POA) Act, 1989, whereby the
charges under sections 341 r/w section 149, 147, 333 r/w section
149, 326 r/w section 149, 332 r/w section 149 (2 counts), 353 r/w
section 149, 352 r/w section 149, 323 r/w section 149 and 427 r/w
section 149 have been framed against the revision petitioner in a
case arising out of crime no.653/2022 registered at PS Bilpak,
district Ratlam.
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2. The exposition of facts, giving rise to present appeal, in
brief, is as under:-
(i) Vikas son of Madanlal Pargi resident of village Palsodi reported
to Sub Inspector Vijay Singh Bamniya of P.S. Bilpank at Police
Outpost Dharad on 15.11.2022 around 16:00 hours that at the same
day he went to Bachhadapara to witness the programme relating to
unveiling the statue of Bhagwan Birsa Munda on the occasion of
Birsa Munda Jayanti. Around 1:00 in the afternoon near temple of
Bhatibadodiya Road at village Dharad, the members of JAYS
Organisation intercepted the vehicles of Member of Parliament,
Member of Legislative Assembly, Collector and other officials.
They stopped the way and abused the Member of Parliament and
Member of Legislative Assembly in filthy language. Sandeep
Chandel, gunman/security guard of Collector and other police
officials tried to remove them. The Members of JAYS Organisation
had altercation and scuffle with them. They pelted stone at the
vehicles. Sandeep Chandel sustained injury on his nose. The
offenders were misbehaving with the police officials and causing
interference in discharge of public duty. They were threatening to
kill them. He knows Dr. Abhay Ohari resident of Ratlam (appellant),
Dr. Anand Rai resident of Ratlam, Kamal Bhuriya resident of
Dharad, Manoj Parmar resident of Dharad, Kishan Singad resident
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of Amleti, Dilip Bhuria resident of Dharad, Anil Ninama resident of
Satrunda, Sanjay Girwal resident of Bhatibadodiya, Ajay resident of
Dharad, Vijay resident of Nalkui, Chhaganlal resident of Jaora,
Mohansingh resident of Lambisadri, Vilesh resident of Lambi
Sadadi Bajna, Gopal Vaghela resident of Nagra, Gopal Ninama
resident of Kundal, Deepak Ninama resident of Ratlam, Chhotu
Bhabhar resident of Jamthun, Jitendra resident of Surjapur and Kalu
resident of Ratlam. There were 40-45 persons who had created Jaam
on the way for almost one hour. P.S. Bilpank registered FIR at crime
No. 653/2022 for offences punishableunder Section 294, 341, 353,
332, 146, 147, 336, 506, 333, 188 and 326 of IPC and Sections 3(1)
(द), 3(1)(ध), 3(2)(va) of Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The injured Sub Inspector
Vijay Bamniya, ASI Premdas, Ratanlal and Sandeep were forwarded
for medico legal examination. The video and photographs of the
incident were recovered and seized. One beer bottle,piece of glass
and stone was seized from the spot of incident. Caste certificate of
Vikas Pargi was seized. Panchanama with regard to identification of
offenders was made. The statements of witnesses were recorded
under Section 161 of Cr.P.C. The call detail report was
requisitioned. Final report was submitted on completion of
investigation.
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ii) Learned Special Judge SC/ST (P.A.) Act, Ratlam framed charges
for offences punishable under relevant Sections as stated in para 1 of
this judgment against Dr.Abhay Ohari vide order dated 18.03.2025
passed in SPL(SCATR) No. 28 of 2023.
3. The impugned order and the charges dated 18.03.2025 is
assailed in the present appeal on following grounds:-
A. There is no document to demonstrate presence of appellant
at the place of incident at the time of incident. The mobile location
report relied by prosecution cannot be said to be conclusive and
concrete proof of presence of appellant. Therefore, the alleged
offences are not made out.
B. The ingredients of alleged offence are not made out against
the appellant. The FIR and final report are silent pertaining to use of
derogatory words or casteist terms against the complainant.
C. No FIR was lodged by actual victim of the incident who
are public servants.
D. The x-ray was conducted by Dr. Ravi Divekar, MBBS,
who is not qualified as Radiologist.
E. The contents of FIR, the charge sheet and the statements
filed by prosecution are insufficient to frame charges against the
appellant.
4. Per contra, learned counsel for the State referring to the
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statements of complainant and other witness recorded under Section
161 of Cr.P.C. and the medico legal examination report contended
that the material on record prima facie makes out the alleged
offence. The presence of appellant was substantiated by the
statement of witness, therefore, learned trial court did not commit
any error. The appeal is meritless.
5. Heard both the parties and perused the record.
6. In the case of Vinay Tyagi Vs. Irshad Ali reported in
(2013) 5 SCC 762 , the Supreme Court examining the scope of pari-
materia provision under Section 228 of Cr.P.C., held as under:
17. After taking cognizance, the next step of definite
significance is the duty of the Court to frame charge in
terms of Section 228 of the Code unless the Court finds,
upon consideration of the record of the case and the
documents submitted therewith, that there exists no
sufficient ground to proceed against the accused, in which
case it shall discharge him for reasons to be recorded in
terms of Section 227 of the Code.
17.1 It may be noticed that the language of Section 228
opens with the words, 'if after such consideration and
hearing as aforesaid, the Judge is of the opinion that there
is ground for presuming that the accused has committed
an offence', he may frame a charge and try him in terms of
Section 228(1)(a) and if exclusively triable by the Court of
Sessions, commit the same to the Court of Sessions in
terms of Section 228(1)(b). Why the legislature has used
the word 'presuming' is a matter which requires serious
deliberation. It is a settled rule of interpretation that the
legislature does not use any expression purposelessly and
without any object. Furthermore, in terms of doctrine of
plain interpretation, every word should be given its
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ordinary meaning unless context to the contrary is
specifically stipulated in the relevant provision.
17.2. Framing of charge is certainly a matter of
earnestness. It is not merely a formal step in the process of
criminal inquiry and trial. On the contrary, it is a serious
step as it is determinative to some extent, in the sense that
either the accused is acquitted giving right to challenge to
the complainant party, or the State itself, and if the charge
is framed, the accused is called upon to face the complete
trial which may prove prejudicial to him, if finally
acquitted. These are the courses open to the Court at that
stage.
17.3. Thus, the word 'presuming' must be read ejusdem
generis to the opinion that there is a ground. The ground
must exist for forming the opinion that the accused had
committed an offence. Such opinion has to be formed on
the basis of the record of the case and the documents
submitted therewith. To a limited extent, the plea of
defence also has to be considered by the Court at this
stage. For instance, if a plea of proceedings being barred
under any other law is raised, upon such consideration, the
Court has to form its opinion which in a way is tentative.
The expression 'presuming' cannot be said to be
superfluous in the language and ambit of Section 228 of
the Code. This is to emphasize that the Court may believe
that the accused had committed an offence, if its
ingredients are satisfied with reference to the record
before the Court.
18. At this stage, we may refer to the judgment of this
Court in the case of Amit Kapoor v. Ramesh Chander &
Anr. 2012 (9) SC 460 wherein, the Court held as under :
"16. The above-stated principles clearly show that
inherent as well as revisional jurisdiction should be
exercised cautiously. If the jurisdiction under Section
482 of the Code in relation to quashing of an FIR is
circumscribed by the factum and caution afore-
noticed, in that event, the revisional jurisdiction,
particularly while dealing with framing of a charge,
has to be even more limited.
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17. Framing of a charge is an exercise of
jurisdiction by the trial court in terms of Section 228
of the Code, unless the accused is discharged under
Section 227 of the Code. Under both these
provisions, the court is required to consider the
‗record of the case' and documents submitted
therewith and, after hearing the parties, may either
discharge the accused or where it appears to the court
and in its opinion there is ground for presuming that
the accused has committed an offence, it shall frame
the charge. Once the facts and ingredients of the
Section exists, then the Court would be right in
presuming that there is ground to proceed against the
accused and frame the charge accordingly. This
presumption is not a presumption of law as such. The
satisfaction of the court in relation to the existence of
constituents of an offence and the facts leading to
that offence is a sine qua non for exercise of such
jurisdiction. It may even be weaker than a prima
facie case. There is a fine distinction between the
language of Sections 227 and 228 of the Code.
Section 227 is expression of a definite opinion and
judgment of the Court while Section 228 is tentative.
Thus, to say that at the stage of framing of charge,
the Court should form an opinion that the accused is
certainly guilty of committing an offence, is
an approach which is impermissible in terms of
Section 228 of the Code.
18. It may also be noticed that the revisional
jurisdiction exercised by the High Court is in a way
final and no inter court remedy is available in such
cases. Of course, it may be subject to jurisdiction of
this court under Article 136 of the Constitution of
India. Normally, a revisional jurisdiction should be
exercised on a question of law. However, when
factual appreciation is involved, then it must find
place in the class of cases resulting in a perverse
finding. Basically, the power is required to be
exercised so that justice is done and there is no abuse
of power by the court. Merely an apprehension or
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suspicion of the same would not be a sufficient
ground for interference in such cases.
19. On analysis of the above discussion, it can safely be
concluded that 'presuming' is an expression of relevancy
and places some weightage on the consideration of the
record before the Court. The prosecution's record, at this
stage, has to be examined on the plea of demur.
Presumption is of a very weak and mild nature. It would
cover the cases where some lacuna has been left out and is
capable of being supplied and proved during the course of
the trial. For instance, it is not necessary that at that stage
each ingredient of an offence should be linguistically
reproduced in the report and backed with meticulous facts.
Suffice would be substantial compliance to the
requirements of the provisions.
7. Recently, in case of Ram Prakash Chadha v. State of
U.P., (2024) 10 SCC 651 , considering the precedents on this point of
law, the Supreme Court observed as under-
16. We have already considered the meaning of the
expression "the record of the case and the documents
submitted therewith" relying on the decision in Debendra
Nath Padhi case [State of Orissa v. Debendra Nath Padhi,
(2005) 1 SCC 568 : 2005 SCC (Cri) 415] only to reassure
as to what are the materials falling under the said
expression and thus, available for consideration of an
application filed for discharge under Section 227CrPC. In
the light of the same, there cannot be any doubt with
respect to the position that at the stage of consideration of
such an application for discharge, defence case or
material, if produced at all by the accused, cannot be
looked at all. Once "the record of the case and the
documents submitted therewith" are before the Court they
alone can be looked into for considering the application
for discharge and thereafter if it considers that there is no
sufficient ground for proceeding against the accused
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concerned then he shall be discharged after recording
reasons therefor. In that regard, it is only appropriate to
consider the authorities dealing with the question as to
what exactly is the scope of consideration and what should
be the manner of consideration while exercising such
power.
17. The decision in Yogesh v. State of Maharashtra
[Yogesh v. State of Maharashtra, (2008) 10 SCC 394 :
(2009) 1 SCC (Cri) 51 : AIR 2008 SC 2991] this Court
held that the words "not sufficient ground for proceeding
against the accused" appearing in Section 227CrPC,
postulate exercise of judicial mind on the part of the Judge
to the facts of the case revealed from the materials brought
on record by the prosecution in order to determine
whether a case for trial has been made out.
18. In the decision in State of T.N.v. N. Suresh Rajan
[State of T.N.v.N. Suresh Rajan, (2014) 11 SCC 709 :
(2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] this
Court held that at a stage of consideration of an
application for discharge, the Court has to proceed with an
assumption that the materials brought on record by the
prosecution are true, and evaluate the materials to find out
whether the facts taken at their face value disclose the
existence of the ingredients constituting the offence. At
this stage, only the probative value of the materials has to
be gone into and the court is not expected to go deep into
the matter to hold a mini-trial.
19. In the decision in B.K. Sharma v. State of U.P.
[B.K. Sharma v. State of U.P., 1987 SCC OnLine All 314]
, the High Court of Judicature at Allahabad held that the
standard of test and judgment which is finally applied
before recording a finding of conviction against an
accused is not to be applied at the stage of framing the
charge. It is just a very strong suspicion, based on the
material on record, and would be sufficient to frame a
charge.
20. We are in agreement with the said view taken by the
High Court. At the same time, we would add that the
strong suspicion in order to be sufficient to frame a charge
should be based on the material brought on record by the
prosecution and should not be based on supposition,
suspicions and conjectures. In other words, in order to be
a basis to frame charge the strong suspicion should be the
one emerging from the materials on record brought by the
prosecution.
21. In the decision in Stree Atyachar Virodhi Parishad
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v. Dilip Nathumal Chordia [Stree Atyachar Virodhi
Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715 :
1989 SCC (Cri) 285] , this Court held that the word
"ground" in Section 227CrPC, did not mean a ground for
conviction, but a ground for putting the accused on trial.
22. In P. Vijayan v. State of Kerala [P. Vijayan v. State
of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] ,
after extracting Section 227CrPC, this Court in paras 10
and 11 held thus: (SCC pp. 401-402)
"10. ... If two views are possible and one of them
gives rise to suspicion only, as distinguished from
grave suspicion, the trial Judge will be empowered to
discharge the accused and at this stage he is not to
see whether the trial will end in conviction or
acquittal. Further, the words "not sufficient ground
for proceeding against the accused" clearly show that
the Judge is not a mere post office to frame the
charge at the behest of the prosecution, but has to
exercise his judicial mind to the facts of the case in
order to determine whether a case for trial has been
made out by the prosecution. In assessing this fact, it
is not necessary for the court to enter into the pros
and cons of the matter or into a weighing and
balancing of evidence and probabilities which is
really the function of the court, after the trial starts.
11. At the stage of Section 227, the Judge has
merely to sift the evidence in order to find out
whether or not there is sufficient ground for
proceeding against the accused. In other words, the
sufficiency of ground would take within its fold the
nature of the evidence recorded by the police or the
documents produced before the court which ex facie
disclose that there are suspicious circumstances
against the accused so as to frame a charge against
him."
23. In para 13 in P. Vijayan case [P. Vijayan v. State of
Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] ,
this Court took note of the principles enunciated earlier by
this Court in Union of India v. Prafulla Kumar Samal
[Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4
: 1979 SCC (Cri) 609] which reads thus: (Prafulla Kumar
Samal case [Union of India v. Prafulla Kumar Samal,
(1979) 3 SCC 4 : 1979 SCC (Cri) 609] , SCC p. 9, para
10)
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"10. ... (1) That the Judge while considering the
question of framing the charges under Section 227 of
the Code has the undoubted power to sift and weigh
the evidence for the limited purpose of finding out
whether or not a
prima facie case against the accused has been made
out.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be
fully justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application.
By and large however if two views are equally
possible and the Judge is satisfied that the evidence
produced before him while giving rise to some
suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge
the accused.
(4) That in exercising his jurisdiction under
Section 227 of the Code the Judge which under the
present Code is a senior and experienced court
cannot act merely as a post office or a mouthpiece of
the prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before the
Court, any basic infirmities appearing in the case and
so on. This however does not mean that the Judge
should make a roving enquiry into the pros and cons
of the matter and weigh the evidence as if he was
conducting a trial."
24. In the light of the decisions referred supra, it is thus
obvious that it will be within the jurisdiction of the Court
concerned to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused concerned has been made out. We are
of the considered view that a caution has to be sounded for
the reason that the chances of going beyond the
permissible jurisdiction under Section 227CrPC and
entering into the scope of power under Section 232CrPC,
cannot be ruled out as such instances are aplenty. In this
context, it is relevant to refer to a decision of this Court in
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Om Parkash Sharma v. CBI [Om Parkash Sharma v.CBI,
(2000) 5 SCC 679 : 2000 SCC (Cri) 1014] . Taking note
of the language of Section 227CrPC, is in negative
terminology and that the language in Section 232CrPC, is
in the positive terminology and considering this
distinction between the two, this Court held that it would
not be open to the Court while considering an application
under Section 227CrPC, to weigh the pros and cons of the
evidence alleged improbability and then proceed to
discharge the accused holding that the statements existing
in the case therein are unreliable. It is held that doing so
would be practically acting under Section 232CrPC, even
though the said stage has not reached. In short, though it is
permissible to sift and weigh the materials for the limited
purpose of finding out whether or not a prima facie case is
made out against the accused, on appreciation of the
admissibility and the evidentiary value such materials
brought on record by the prosecution is impermissible as it
would amount to denial of opportunity to the prosecution
to prove them appropriately at the appropriate stage
besides amounting to exercise of the power coupled with
obligation under Section 232CrPC, available only after
taking the evidence for the prosecution and examining the
accused.
25. Even after referring to the aforesaid decisions, we
think it absolutely appropriate to refer to a decision of the
Madhya Pradesh High Court in Kaushalya Devi v. State of
M.P. [Kaushalya Devi v. State of M.P., 2003 SCC OnLine
MP 672] It was held in the said case that if there is no
legal evidence, then framing of charge would be
groundless and compelling the accused to face the trial is
contrary to the procedure offending Article 21 of the
Constitution of India. While agreeing with the view, we
make it clear that the expression "legal evidence" has to
be construed only as evidence disclosing prima facie case,
"the record of the case and the documents submitted
therewith".
26. The stage of Section 227CrPC, is equally crucial and
determinative to both the prosecution and the accused, we
will dilate the issue further. In this context, certain other
aspects also require consideration. It cannot be said that
Section 227CrPC, is couched in negative terminology
without a purpose. Charge-sheet is a misnomer for the
final report filed under Section 173(2)CrPC, which is not a
negative report and one that carries an accusation against
the accused concerned of having committed the offence(s)
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mentioned therein.
27. In cases, where it appears that the said offence(s) is
one triable exclusively by the Court of Session, the
Magistrate shall have to commit the case to the Court of
Session concerned following the prescribed procedures
under CrPC. In such cases, though it carries an accusation
as aforementioned still legislature thought it appropriate to
provide an inviolable right as a precious safeguard for the
accused, a pre-battle protection under Section 227CrPC.
Though this provision is couched in negative it obligated
the court concerned to unfailingly consider the record of
the case and document submitted therewith and also to
hear the submissions of the accused and the prosecution in
that behalf to arrive at a conclusion as to whether or not
sufficient ground for proceeding against the accused is
available thereunder. Certainly, if the answer of such
consideration is in the negative, the court is bound to
discharge the accused and to record reasons therefor. The
corollary is that the question of framing the charge would
arise only in a case where the court upon such exercise
satisfies itself about the prima facie case revealing from
"the record of the case and the documents submitted
therewith" against the accused concerned. In short, it can
be said in that view of the matter that the intention
embedded is to ensure that an accused will be made to
stand the ordeal of trial only if "the record of the case and
the documents submitted therewith" discloses ground for
proceeding against him. When that be so, in a case where
an application is filed for discharge under Section
227CrPC, it is an irrecusable duty and obligation of the
Court to apply its mind and answer to it regarding the
existence of or otherwise, of ground for proceeding
against the accused, by confining such consideration based
only on the record of the case and the documents
submitted therewith and after hearing the submissions of
the accused and the prosecution in that behalf. To wit,
such conclusion on existence or otherwise of ground to
proceed against the accused concerned should not be and
could not be based on mere suppositions or suspicions or
conjectures, especially not founded upon material
available before the Court. We are not oblivious of the
fact that normally, the Court is to record his reasons only
for discharging an accused at the stage of Section
227CrPC. However, when an application for discharge is
filed under Section 227CrPC, the Court concerned is
bound to disclose the reason(s), though, not in detail, for
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finding sufficient ground for rejecting the application or
in other words, for finding prima facie case, as it will
enable the superior court to examine the challenge against
the order of rejection.
8. The appellant is implicated for forming "Common
Object" of an unlawful assembly, in prosecution of which, other
alleged offences were committed by the members of such assembly.
The essential ingredients of Section 149 IPC are:-
(i) Commission of an offence by any member of an
unlawful assembly;
(ii) Such offence must have been committed in
prosecution of the common object of that assembly; or
(iii) must be such as the member of that assembly knew it
be likely to be committed.
9. It is trite law that mere presence in an unlawful assembly
cannot render a person liable unless there was a common object and
he was actuated by that common object and that object is one of
those set out in Section 141 of the Indian Penal Code. The
expression "in prosecution of common object" as appearing in
Section 149 of the Indian Penal Code has to be strictly construed as
equivalent to "in order to attain the common object." It must be
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immediately connected with the common object by virtue of the
nature of the object. First part of the Section 149 of the Indian Penal
Code provides that the offence to be committed in prosecution of the
common object must be one which is committed with a view to
accomplish he common object. Second part of this section makes it
clear that even if the offence committed is not in direct prosecution
of the common object of the assembly, it may yet fall under Section
149, if it can be held that the offence was such as the members knew
was likely to be committed.
10. In State of Maharashtra vs. Kashirao and others AIR
2003 SC 3901, it was observed that:-
"12. xxxxxxxxx...... The crucial question to determine 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 in Section 141. It cannot
be laid down as a general proposition of law that unless an
overt act is proved against a person, who is alleged to be a
member of unlawful assembly, it cannot be said that he is
a member of an assembly. The only thing required is that
he should have understood that the assembly was unlawful
and was likely to commit any of the acts which fall within
the purview of Section 141. The word 'object' means the
purpose or design and, in order to make it 'common', it
must be shared by all. In other words, the object should be
common to the persons, who compose the assembly, that
is to say, they should all be aware of it and concur in it. A
common object may be formed by express agreement after
mutual consultation, but that is by no means necessary. It
may be formed at any stage by all or a few members of the
assembly and the other members may just join and adopt
it. Once formed, it need not continue to be the same. It
may be modified or altered or abandoned at any stage. The
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expression 'in prosecution of common object' as appearing
in Section 149 have to be strictly construed as equivalent
to 'in order to attain the common object'. It must be
immediately connected with the common object by virtue
of the nature of the object. There must be community of
object and the object may exist only up to a particular
stage, and not thereafter. Members of an unlawful
assembly may have community of object up to certain
point beyond which they may differ in their objects and
the knowledge, possessed by each member of what is
likely to be committed in prosecution of their common
object may vary not only according to the information at
his command, but also according to the extent to which he
shares the community of object, and as a consequence of
this the effect of Section 149, IPC may be different on
different members of the same assembly.
13. 'Common object' is different from a 'common
intention' as it does not require a prior concert and a
common meeting of minds before the attack. It is enough
if each has the same object in view and their number is
five or more and that they act as an assembly to achieve
that object. The 'common object' of an assembly is to be
ascertained from the acts and language of the members
composing it, and from a consideration of all the
surrounding circumstances. It may be gathered from the
course of conduct adopted by the members of the
assembly. For determination of the common object of the
unlawful assembly, the conduct of each of the members of
the unlawful assembly, before and at the time of attack
and thereafter, the motive for the crime, are some of the
relevant considerations. What the common object of the
unlawful assembly is at a particular stage of the incident is
essentially a question of fact to be determined, keeping in
view the nature of the assembly, the arms carried by the
members, and the behaviour of the members at or near the
scene of the incident.
It is not necessary under law that in all cases of
unlawful assembly, with an unlawful common object, the
same must be translated into action or be successful.
Under the Explanation to Section 141, an assembly which
was not unlawful when it was assembled, may
subsequently become unlawful. It is not necessary that the
intention or the purpose, which is necessary to render an
assembly an unlawful one comes into existence at the
outset. The time of forming an unlawful intent is not
material. An assembly which, at its commencement or
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even for some time thereafter, is lawful, may subsequently
become unlawful. In other words it can develop during the
course of incident at the spot co instanti.
14. Section 149, IPC consists of two parts. The first
part of the section means that the offence to be committed
in prosecution of the common object must be one which is
committed with a view to accomplish the common object.
In order that the offence may fall within the first part, the
offence must be connected immediately with the common
object of the unlawful assembly of which the accused was
member. Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may
yet fall under Section 141, if it can be held that the offence
was such as the members knew was likely to be
committed and this is what is required in the second part
of the section.
The purpose for which the members of the assembly
set out or desired to achieve is the object. If the object
desired by all the members is the same, the knowledge
that is the object which is being pursued is shared by all
the members and they are in general agreement as to how
it is to be achieved and that is now the common object of
the assembly. An object is entertained in the human mind,
and it being merely a mental attitude, no direct evidence
can be available and, like intention, has generally to be
gathered from the act which the person commits and the
result there from. Though no hard and fast rule can be laid
down under the circumstances from which the common
object can be called out, it may reasonably be collected
from the nature of the assembly, arms it carries and
behaviour at or before or after the scene of incident. The
word 'knew' used in the second branch of the section
implies something more than a possibility and it cannot be
made to bear the sense of 'might have been known'.
Positive knowledge is necessary. When an offence is
committed in prosecution of the common object, it would
generally be an offence which the members of the
unlawful assembly knew was likely to be committed in
prosecution of the common object. That, however, does
not make the converse proposition true; there may be
cases which would come within the second part but not
within the first part. The distinction between the two parts
of Section 149 cannot be ignored or obliterated. In every
case it would be an issue to be determined, whether the
offence committed falls within the first part or it was an
offence such as the members of the assembly knew to be
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18 CRA-4129-2025
likely to be committed in prosecution of the common
object and falls within the second part. However, there
may be cases which would be within first offences
committed in prosecution of the common object would be
generally, if not always, with the second, namely, offences
which the parties knew to be likely committed in the
prosecution of the common object. (See Chikkarange
Gowda and others v. State of Mysore : AIR 1956 SC
731.)"
(emphasis added)
11. The material on case diary is examined in the light of
the aforestated prepositions of law. The witnesses Vikas Pargi,
Sandeep Chandel, Constables Ram Bahadur, Prem Singh, Lakhan
Bairagi, Rahul Sen, Nitesh Prajapt, Ratanlal Palasiya, Rajesh, ASI
Premdas and SI Vijay Bamaniya, in their statements recorded under
Section 161 of Cr.P.C., stated that participants of rally by JAYS
organisation restrained the vehicles of MLA, MP, Collector and
other authorities. Dr. Anand Rai (Appellant) was part of rally of
JAYS. He was present on the spot. The members of JAYS have
assaulted Sandeep, PSO of Collector. Sandeep sustained fracture on
his nose in the incident. Ratanlal and Rajesh also sustained injuries.
Thus, the witnesses of incident have specifically alleged that Dr.
Anand Rai was participant in the rally of JAYS. He was present at
the spot of incident alongwith members of JAYS organisation.
Learned trial Court considering the material on record proceeded to
frame charges against Dr. Anand Rai as stated above. The trial Court
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19 CRA-4129-2025
has assigned elaborate reasons for every head of charge. The
reasoning is apparently proper and based on the material on record.
Whether Dr. Anand Rai was a member of JAYS organization? or
whether he was present on the spot of incidentally and did not know
the common object of the assembly?, will be determined after
evidence in trial. At this juncture, no inference can be drawn that
appellant was merely present on the spot and he did not know that
the alleged offence are likely to be committed by other members of
unlawful assembly.
12. In view of above discussion and in the light of material
collected during investigation, this court is of considered opinion
that the impugned order does not suffer from any impropriety or
patent illegality. So, no case is made out to set aside the impugned
Order dated 18.03.2025 in exercise of jurisdiction under Section
14(A)(1) of the Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Act, 1989.
13. Consequently, the appeal is dismissed.
(GAJENDRA SINGH)
JUDGE
hk/
