CHANDRA SHEKHAR Vs. GANGA PRASAD

JUDGEMENT

(1.) S. R. Bhargava, J. This revision has been heard finally at this stage with the consent of the parties Counsel and is being disposed of finally. What appears is that in respect of alleged incident of July 1979 application dated 2. 8. 79 was moved by one Ganga Prasad under Section 146 (3) with the allegations that he is the owner of a shop and has been in possession. He has some machines etc. fixed in his shop. But Murari Lal, Suresh Chand, Chandra Shekhar, Om Prakash, Prabhu and Mahadeo (revisionists) are inimical to him. They came to his shop, Om Prakash having a gun, Murari and Suresh having Farasas and others having Lathi and spear. Ganga Prasad's son Nathi Lal was present at the shop. Revisionists trespassed into his shop and broke the goods of the shop. When Ganga Prasad tried to stop them, gun was placed on his chest and he was threatened that he would be killed. Then the revisionists caused damage to the machinery fixed in the shop. They ultimately looted the property from the shop. Case was registered under Section 395 I. P. C. and after investigation final report was submitted. Ganga Prasad filed protest petition on which revisonists were summoned for offences under Sections 148, 452,352 and 427 I. P. C. It appears that the revisionists were ultimately charged with offences under Sections 148, 452, 427 I. P. C. After prosecution evidence and after statements of the revisionists under Section 313, Cr. P. C. learned Magistrate recorded conviction of the revisionists for offences under Sections 147,148, I. P. C. only. He sentenced them to imprisonment for two months under Section 147, I. P. C. and to imprisonment for six months under Section 148 I. P. C. Revisionists preferred appeal. Learned Lower Appellate Court dismissed the appeal without any findin6 on the questions of facts whether revisionists had any criminal inten tion, whether they trespassed into the shop and whether they committed any mischief in the shop. They the revisionists came to this Court.

(2.) I must say that the approach of both the lower Courts has been altogether illegal. Both the Courts convicted the revisionists without proper findings and without proper understanding of law. Under Sections 147 and 148 I. P. C. offence punishable is of rioting. When there is rioting simplicitor offence is punishable under Section 147 I. P. C. But when offence or rioting is committed by particular accused or persons having deadly weapons, offence is punishable under Section 148 I. P. C. Under both sections gravemen of the charge is rioting word rioting has been defined in Section 146 which clearly lays down that whenever force of violence is used by an unlawful assembly, or by any member thereof, in prosecution of common object of such assembly, every member of such assembly is guitly of the offence of rioting. Section 141 I. P. C. defines unlawful assembly as collection of five or more persons with the common object of the persons composing that assembly. First - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parlianment 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 omit to do what he is legally entitled to do.

(3.) IN result this revision should succeed. Conviction and sentences of the revisionists should be set aside. Revision is allowed. Conviction and sentences of the revisionists are set aside. Revisionists are on bail. Their bail bonds are cancelled and sureties are dis charged. They need not surrender. Revision allowed. .