Under certain circumstances, less than 5 people can be charged of wrongful assembly:Supreme Court

149 of the IPC and sentence of one year RI and a fine of 18 others on that basis FIR was registered on 27.11.2004 at about 13.00 hours and a charge­sheet was submitted against the appellants and 18 other accused persons under Sections 148 294 341 149 325 149 323 149 abusing him with filthy language. They were Mahendra Singh Roop Singh Khilan Singh son of Halkai Bhujbal and 10 to 12 other persons whose names are not known to him. The Trial Court charge­sheeted 20 persons under Sections 148 294 341 149 325 149323 149324 149 and trial and three accused persons were finally convicted under note that one of the accused persons who were convicted namely Sardar Singh expired during pendency of criminal revision before the High Court and qua him the revision was The judgment dated 12.11.2008 came to be confirmed on appeal being preferred by the present appellants before the learned 3rd Additional Sessions Judge Vidisha by judgment sheet was originally filed against 20 persons and all of them against the judgment of acquittal passed by the Trial Court 325 149 and 323 149 IPC and it is not the case of the who could not be traced charged other than the persons who Counsel for the appellants submits that ingredients of be five or more and in the instant case out of 20 accused persons who faced trial three have been convicted by the Sections 148 325 149 and 323 149 IPC and the essential persons as contemplated under Section 141 IPC. Taking assistance thereof counsel submits that the conviction under the impugned judgment of the appellants under Sections 325 impugned submits that 20 persons were charge­sheeted who IPC the requirement of Section 141 which contemplates We have heard counsel for the parties and with their The legal position in regard to essential ingredients of an members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in 149 are that the offence must have been committed by any member of an unlawful assembly and Section 141 makes it assembly that an unlawful assembly is born provided of course the other requirements of the said section as to the common numbering in all more than five composed an unlawful assembly these others being persons not identified and un­ However in the instant case the persons are specifically named by the complainant and against them after the investigation charge­sheet was filed and all the 20 accused unnamed or unidentified persons other than the one who are charge­sheeted and faced trial. When the other co­accused there must have been some other persons along with the appellant in causing injuries to the victim. In the facts and The appellants may be held responsible for the offence if In the given facts and circumstances in our considered with the aid of Section 149 IPC at least could not have been That apart the appellants have also undergone three Consequently the appeal succeeds and is accordingly allowed. The judgment of the Trial Court dated 12.11.2008 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 in Criminal Revision Pending application(s) if any shall stand disposed of ITEM NO.21 Court 13SECTION II A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s). 6530 2018 Arising out of impugned final judgment and order dated 25 06 2018 in CRLR No. 156 2009 passed by the High Court Of M.P At Gwalior MAHENDRA & ANR. PETITIONER(S VERSUS THE STATE OF M.P. RESPONDENT(S IA No. 101147 2018 EXEMPTION FROM FILING O.T Date : 05 01 2022 This matter was called on for hearing today CORAM : HON BLE MR. JUSTICE AJAY RASTOGI HON BLE MR. JUSTICE ABHAY S. OKA Mr. Somesh Chandra Jha AOR Ms. Deeksha Mishra Adv Mr. Veer Vikrant Singh Dy.AG Mr. Nirmal Kumar Ambastha Adv Mr. Pashupati Nath Razdan AOR Mr. Prakhar Srivastav Adv Ms. Sneh Bairwa Adv UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed order Pending application(s) if any shall stand disposed of NIRMALA NEGI) COURT MASTER (NSH Signed order is placed on the file

Summary: The apex court clarified the position as to whether in a case of wrongful assembly involving less than five people can be allowed in this appeal arising out of special leave petition at the Supreme Court Of India with bench consisting of Justice Ajay Rastogi and Justice Abhay S Oka in matters of Mahendra and Anr. v. State of MP Criminal Appeal No.- 30 of 2022 decided on 5.1.2022 . The facts of this case are the complainant went to the village to lift the engine of a tractor and while returning they were attacked by the the main accused and his sons along with 17 others unknown and unidentified , who verbally abused and wanted to kill them.All 20 people faced the trial and the Trial court convicted three of them under section 148, 325/149, 323/149 of IPC.The  Madhya Pradesh High Court upheld the conviction by trial court.This order of conviction is in challenge before this court. The counsel on behalf of the Appellant contended that it is an essential condition that there must be five or more persons for contemplating unlawful assembly which was not the case and only three accused were convicted.Hence the conviction is not untenable. The counsel on behalf of the Appellant contended that 20 people were chargesheeted and faced trial and thereafter, merely three accused persons were finally convicted and thus, requirement for five or more persons for unlawful assembly is completely “meted out and after the matter has been examined by the court” and requires no further interference into the merits of the case by this court. The Supreme Court held that it is undoubtedly membership of five or more persons is essential condition for unlawful assembly yet, it is not always necessary that all such accused persons be brought before the court and convicted.But when more than five people are chargesheeted and face trial and some of them are acquitted, if the remaining number of accused is less than five then, the remaining cannot be convicted under section 149 of IPC.So, section 149 of IPC which is unlawful assembly cannot be invoked against the accused.The judgement by Madhya Pradesh High Court was set aside and appeal was allowed.