Madhya Pradesh High Court
Dr Anand Rai vs The State Of Madhya Pradesh on 3 July, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 3rd OF JULY, 2025
CRIMINAL APPEAL No. 3945 OF 2025
DR. ANAND RAI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vivek Krishna Tankha senior advocate (through VC) with
Shri Abhinav Dhanodkar advocate for the appellant.
Shri Rajesh Joshi, Public Prosecutor for the State.
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JUDGMENT
This first appeal under Section 14(A)(1) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 is filed assailing the
order dated 18.03.2025 passed in SPL(SCATR) No. 28 of 2023 by learned
Special Sessions Judge Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Act, Ratlam, whereby charges for offence punishable under
Sections 341 read with Section 149 of IPC, Section 147 IPC, Section 333
read with Section 149 IPC also read with Section 3(2)(va) of SC/ST (PA)
Act, 1989; Section 326 read with Section 149 of IPC also read with
Section 3(2)(va) of SC/ST (PA) Act; Section 332 read with section 149
(two counts) of IPC, Section 353 read with Section 149 IPC, Section 352
read with Section 149 of IPC, Section 427 read with Section 149 IPC,
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Section 323 read with Section 149 of IPC and Section 3(2)(v) of SC/ST
(PA) Act were framed against the appellant Dr. Anand Rai.
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, Dr. Anand Rai resident of Ratlam, Kamal
Bhuriya resident of Dharad, Manoj Parmar resident of Dharad, Kishan
Singad resident 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,
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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 punishable
under 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.
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 Anand Rai 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. Rule 7 of Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 provides procedure for prosecution of offence
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punishable under the SC/ST (P.A.) Act,1989. The prosecution can be
launched and investigated by a police officer not below the rank of
Deputy Superintendent of Police. In the present matter, the
investigation was done by Inspector Om Prakash Chongade. Therefore,
the impugned order is bad in law as the same was passed without
considering the circular No. F-12-99/2017/B-1 dated 13.10.2017.
B. The state government cannot appoint any officer below the rank
of Dy. Superintendent of Police to investigate the offence against Rule
7 of Rules, 1995C. There was no specific ground of abuse or act falling under IPC
or SC/ST (P.A.) Act, against the present appellant. The present
appellant was falsely implicated in the matter. There is no specific
allegation of stone pelting or use of caste slogan against the present
appellant.
D. 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.
E. 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.
F. No FIR was lodged by actual victim of the incident who are
public servants.
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G. The x-ray was conducted by Dr. Ravi Divekar, MBBS, who is
not qualified as Radiologist.
H. The contents of FIR, the charge sheet and the statements filed by
prosecution are insufficient to frame charges against the appellant.
4 On these grounds, it is requested that the impugned order dated
18.03.2025 and the charges be quashed and appellant be discharged.
5 Learned senior advocate for the appellant, in addition to the ground
mentioned in the appeal referring to the judgment of Shajan Skaria Vs.
State of Kerala reported in 2024 SCC Online SC 2249; Shashikant
Sharma Vs. State of Uttar Pradesh, reported in 2023 SCC Online SC
1599 and Khuma Singh Vs. State of Madhya Pradesh, reported in
(2020) 18 SCC 763 contended that the ingredients for the offence
punishable under Section 3(1)(r) and Section 3(2)(va) of SCST (P.A.) Act
are not made out from the material submitted alongwith the final report.
There is not allegation that the appellant had committed the offence
knowing that the complainant belongs to scheduled caste. The appellant
was invited to participate in the programme. His presence at the spot of
incident was not proved by material collected during investigation.
Therefore, the alleged offences were not prima facie made out. Learned
trial court committed error in framing the charges against the appellant.
6 Per contra, learned counsel for the State referring to the 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
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appellant was substantiated by the statement of witness, therefore, learned
trial court did not commit any error. The appeal is meritless.
7 Heard both the parties and perused the record.
8 Learned Counsel for the appellant, relying on the judgment of
Supreme Court in case of State of Madhya Pradesh Vs. Babbu Rathore
and other reported in (2020) 2 SCC 577 and Rule 7 of the Scheduled
Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 and also
referring to the circular dated 13.10.2017 contended that the police officer
in the rank of Inspector was not authorised to conduct investigation into
the offence punishable under Sections 326, 333 of IPC. Therefore, the
investigation and further prosecution against the appellant was bad in law.
9 Section 9 of the Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Act provides as under:-
9. Conferment of powers.– (1) Notwithstanding anything contained in the Code
or in any other provision of this Act, the State Government may, if it considers it
necessary or expedient so to do,–
(a) for the prevention of and for coping with any offence under this Act, or
(b) for any case or class or group of cases under this Act,
in any district or part thereof, confer, by notification in the Official Gazette, on any
officer of the State Government, the powers exercisable by a police officer under
the Code in such district or part thereof or, as the case may be, for such case or
class or group of cases, and in particular, the powers of arrest, investigation and
prosecution of persons before any Special Court.
(2) All officers of police and all other officers of Government shall assist the officer
referred to in sub-section (1) in the execution of the provisions of this Act or any rule,
scheme or order made thereunder.
(3) The provisions of the Code shall, so far as may be, apply to the exercise of
the powers by an officer under sub-section (1).
10 Clause 4 of the circular dated 16.11.2017 issued by Director General
of Police, Madhya Pradesh referring to the Notification no. F.12-99-2017
B-1- two, dated 13.10.2017 issued by the State Government, reads as
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under:-
4 भभारततीय ददंड वविधभान ककी धभारभाओं (120(क), 120(ख), 217, 294, 323, 324, 325, 332, 341,
354, 363, 365, 447, 506, 509) कके सभाथ-सभाथ विके सभती मभामलके वजिनमके अननुससूवचित जिभावत /अननुससूवचित
जिनजिभावत (अतयभाचिभार वनविभारण) अवधवनयम, 1989 (सदंशशोवधत अवधवनयम, 2015) ककी धभारभा 3(1)
ककी उपधभारभाएएँ अथविभा 3(2)5(क) लगभाई गयती हशो, उक्त अपरभाधधों ककी वविविकेचिनभा वनरतीक्षक सतर कके
अवधकभारती सके करभाई जिभाविके।
The offence enumerated in clause 4 can be investigated by an officer
in the rank of Inspector. The offences registered against the appellant in
FIR fall within the purview of offences enlisted in clause 4 of the circular.
The investigation into crime No. 653 of 2022 was conducted by the
Inspector, Om Prakash Chongade. Therefore, the contention regarding the
legal flaw in the investigation of the alleged offence has no merit. (State
of Bihar Vs. Anil Kumar reported in (2017) 14 SCC 304, Three Judge
Bench, relied)
11 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 ordinary
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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.
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
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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 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.
12 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 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
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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 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
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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)
“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 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
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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) 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
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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 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.
13 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.
14 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 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
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the 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.
14 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 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
15NEUTRAL CITATION NO. 2025:MPHC-IND:16535
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 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 likely to be committed in prosecution of the
16NEUTRAL CITATION NO. 2025:MPHC-IND:16535
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)
15 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 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
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assembly. Therefore, the learned trial court committed no error in framing
charges of other offences read with Section 149 of IPC against the
appellant.
16 In view of above discussion, 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.
Consequently, the appeal is dismissed.
(SANJEEV S KALGAONKAR)
JUDGE
BDJ
Digitally signed by BHUNESHWAR DATT
BHUNESH
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENTCH AT INDORE, ou=HIGH COURT OF MADHYA
PRADESH BENTCH AT INDORE,
2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee5a74
a94a5534aed3a66d9385cfcfc201e0,
WAR DATT
postalCode=452001, st=MADHYA PRADESH,
serialNumber=89FD75A8D0C99E05779A327974E4
6BC85102826CE0604B211E4C91102B4D1269,
cn=BHUNESHWAR DATT
Date: 2025.07.03 19:26:33 +05’30’