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Ramasray Aher v. King-Emperor
Structured Summary of the Opinion — Wort, J. (with concurring note by Adami, J.)
Factual and Procedural Background
Four applicants seek revision of convictions that were originally entered by the Magistrate of Arrah and affirmed on appeal by the Sessions Judge. Initially nine persons were charged before the Magistrate; on appeal five of these were acquitted and the convictions of the four petitioners were affirmed.
The accused were originally charged under sections 147 and 353 of the Indian Penal Code. The alleged common object under section 147 was to assault a constable in order to resist him and to rescue a prisoner named Pillu. The factual events occurring on 11–12 October 1927, as found in the record and summarized by the Court, are that police had information regarding a theft; a constable and a chaukidar went to the village, arrested Pillu early in the morning, and were subsequently attacked by other inmates and people who had assembled, resulting in the constable receiving serious injuries (including a broken arm) and becoming unconscious.
On appeal the Sessions Judge concluded that the evidence did not clearly identify which accused actually struck the constable; he therefore altered convictions from sections 147 and 353 to convictions under sections 149 and 323 and section 353 read with section 149. The present revision application challenges, among other points, the validity of convicting the four applicants under section 149 when they were not charged under that section originally.
Legal Issues Presented
- Whether the arrest of Pillu by the constable was a lawful arrest (relevant to whether rescue or attack was lawful).
- Whether conviction of the applicants under section 149 of the IPC is bad because they were not originally charged under section 149, i.e., whether section 149 creates a separate offence that must be charged.
- Whether the omission of an express charge under section 149 prejudiced the accused's defence.
- Whether, given that only four persons were identified on appeal, the assembly could properly be treated as an "unlawful assembly" under section 147 of the IPC.
- Whether the test identification evidence was properly proved and admissible.
- Whether the sentences imposed (rigorous imprisonment for one year and a fine under section 147) were excessive and open to interference in revision.
Arguments of the Parties
Applicants' Arguments (as summarized in the opinion)
- The arrest of Pillu was not lawful; therefore the actions of the accused in rescuing Pillu (and the attendant assault on the constable) were lawful or at least within their rights.
- The applicants were not charged under section 149 of the Indian Penal Code, and therefore conviction under section 149 is bad.
- Because only four persons were ultimately identified as participants, the assembly could not be treated as an unlawful assembly (under section 147), and convictions under that section were improper.
- The test identification procedure/report was not properly proved or admitted.
- The sentences imposed were excessive and should be interfered with in revision.
The opinion does not set out in detail the prosecution's separate arguments in adversarial form; the Court's record focuses primarily on the applicants' points and the Court's responses to them.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Queen Empress v. Bisheshar (referenced; judgment of Sir John Edge, C.J., Allahabad High Court) | Holds that section 149 of the IPC does not create a separate offence but prevents an accused from relying on the defence that he did not personally commit the offence in prosecution of the common object. | The Court relied on this authority to support the conclusion that section 149 creates no independent offence and therefore the omission of section 149 from the charge did not, per se, vitiate the conviction or cause prejudice to the accused. |
| Theethumalai Gounder v. King Emperor | Discussed whether section 149 creates a separate offence; led to reference to a Full Bench on related questions; concluded section 149 does not create an offence. | The Court cited and followed this decision (and the Full Bench conclusion referred to therein) to reinforce the view that section 149 is declaratory and not a separate substantive offence, supporting the disposition that omission of s.149 from the charge was not fatal. |
| Unreported Madras High Court decision (referred to in Theethumalai discussion) | Held that where the charge is sufficiently clear, the mere omission of section 149 from the charge is not sufficient to vitiate conviction for the substantive offence. | The Court noted this unreported decision as supporting the proposition that absence of an express charge under s.149 is not necessarily prejudicial when the substantive charge is clear; the Madras Full Bench discussion was treated as supporting the same conclusion. |
| Decision of the Calcutta High Court (unnamed; referred to by counsel) | Expresses a different view on the legal effect of section 149 (i.e., a view contrary to the Allahabad/Madras position). | The Court acknowledged this conflicting authority but expressly preferred the decisions of the Allahabad and Madras High Courts on the plain reading of section 149. |
Court's Reasoning and Analysis
The Court addressed the principal points in sequence and applied statutory text, evidentiary findings, and precedent as follows:
- Lawfulness of Arrest: The Court found "the clearest possible evidence" that the constable had information regarding a theft, bringing the case within section 54 of the Code of Criminal Procedure (which permits arrest without warrant by a police officer in specified circumstances). Both Courts below had found the conditions of section 54 satisfied, and accordingly the Court held the arrest of Pillu to be lawful. Because the arrest was lawful, the defence that the attack was a justified rescue failed on that ground.
- Nature and Effect of Section 149 IPC: The Court analysed whether section 149 constitutes a separate offence requiring a specific charge. On a plain reading and relying on the cited authorities (Queen Empress v. Bisheshar; Theethumalai Gounder v. King Emperor and related Madras authorities), the Court held that section 149 does not create an independent substantive offence. Rather, it is a declaratory provision that, when its conditions are satisfied, prevents individual members of an unlawful assembly from escaping liability on the ground that they did not personally commit the substantive offence. Consequently, the absence of an express allegation of section 149 in the formal charge did not render the convictions bad, because the applicants had notice of the substantive offence (e.g., under section 353) and could and did defend on that basis.
- Practice Versus Law: The Court observed that although it might be customary practice to mention section 149 in a charge, a matter of practice cannot override rules of law. Therefore the customary omission of s.149 in some charges could not be treated as prejudicial when, as here, the substantive offences were clearly alleged and the accused had adequate notice to frame their defence.
- Unlawful Assembly and Identification: The Sessions Judge had found that the evidence did not identify five of the original nine charged persons, but was satisfied as to four. The applicants contended that, as only four were identified, the assembly could not be an unlawful assembly under section 147. The Court rejected that contention: the constable testified there were about twenty people present and ten or eleven either striking or attempting to strike him; four were positively identified by the lower Courts. The Court held it would be "doing violence to the evidence" to conclude the assembly was not unlawful, and therefore convictions under section 147 were proper.
- Status of Pillu: The Court addressed whether Pillu could be considered a member of the unlawful assembly (given that the assembly's object was to rescue him). The Court found that after his rescue, Pillu joined in attacking the constable and thus made himself a member of the unlawful assembly; his conviction on that point was therefore proper.
- Test Identification Evidence: A contention was raised that the test identification report was inadmissible or improperly proved. The Court found that a notation by the Magistrate showed the report was put in evidence and there was no objection by either party at trial. On that basis the objection to the test identification point failed.
- Sentence: The Court reviewed sentence — one year rigorous imprisonment plus a fine under section 147 for each applicant. In view of the gravity of the offence (attacking a constable in the execution of his duty) and the sustained convictions, the Court declined to interfere with the sentences in the exercise of its discretion.
- Reliance on Conflicting Authority: Although counsel for the applicants cited a Calcutta High Court decision taking a different view of section 149, the Court stated that, on the plain reading of the section, it preferred to follow the decisions of the Allahabad and Madras High Courts (as reflected in the precedents discussed).
Holding and Implications
Holding: The Court discharged the rule (i.e., the revision application did not succeed). The convictions and the sentences previously imposed were sustained.
Implications:
- Direct effect on the parties: The four petitioners' convictions (as affirmed on appeal and as considered under the applicable sections) and their sentences (rigorous imprisonment for one year and a fine) remain in force; the revision application was dismissed by the Court and the rule was discharged.
- On section 149: The Court reaffirmed the position (following the cited authorities) that section 149 does not create a separate substantive offence but is declaratory in nature; accordingly, absence of an express charge alleging s.149 is not in itself necessarily prejudicial when the substantive offence has been clearly alleged and defended.
- On precedent and practice: The Court emphasized that customary practice (for example, routinely mentioning s.149 in the charge) cannot overturn the substantive rule of law; the Court preferred the authoritative interpretations of the Allahabad and Madras High Courts over the differing view attributed to the Calcutta High Court in this matter.
- On precedent-setting: The opinion applies and follows existing High Court decisions rather than purporting to create a novel legal principle; the Court expressly preferred existing authorities and did not indicate the establishment of a new precedent beyond its choice between competing authorities.
Concurring note: Adami, J. agreed with the reasoning and the result ("I agree. Rule discharged.").
Wort, J.:— This is an application in revision by four persons who were convicted in the first place by the learned Magistrate of Arrah and whose conviction was affirmed on appeal to the learned Sessions Judge.
In the first instance before the Magistrate nine persons were charged but on appeal five of them were acquitted and the conviction of four, the petitioners before us, was affirmed.
They were originally charged under sections 147 and 353 of the Indian Penal Code. The common object alleged under section 147 was to assault a constable with a view to resist him and to rescue a certain prisoner whose name will presently be mentioned.
A number of points of law have been raised and argued in great detail by the learned Advocate for the applicants; but apart from those which I am about to state and others which will appear during the course of my judgment, the facts in the case are not material.
Apparently on the 11th October, 1927, an information against one Pillu, Munesar and Ekbal was received at the police-station and the Writer Head Constable in charge deputed a constable and a chaukidar to go to the village of Bhikhampur where the prisoners were supposed to be and to arrest them. They arrived at the village late at night and stayed at the house of one Baldeo Singh and early next morning, in fact before dawn, they arrived at the house of Ekbal and demanded that he should come out. In the events which happened it appears that Pillu came out of the house and was arrested and shortly what happened after that was that the other inmates of the house together with a number of people who had collected proceeded to rescue Pillu from the hands of the constable and in the course of doing so they assaulted the constable, broke his arm, and with other minor injuries he was eventually rendered unconscious.
As I have stated they were charged under sections 147 and 353. On appeal the learned Sessions Judge was of the opinion that the evidence did not disclose definitely which of the accused actually struck the constable and at whose hands he received the injuries which I have mentioned. In consequence he altered the conviction from one under sections 147 and 353 to a conviction under sections 149 and 323 and section 353 read with section 149.
The substantial question raised in this application is, by reason of convicting the four applicants under section 149, is the conviction bad because they were not charged under section 149. But before I come to deal with that question, another one arises which was the first point taken in the case. The substance of the argument on this first point was that the action of these nine people on the day of the occurrence on the 12th October, 1927 was not unlawful as the arrest of Pillu itself was not a legal arrest, and therefore they were exercising no more than their rights in rescuing Pillu from the hands of the constable. That depends upon a number of considerations. Obviously the first one is whether the arrest of Pillu was a lawful one or not, and the second one that arises out of it, whether the arrest of Pillu was lawful or not whether the applicants went beyond their rights in attacking as they did the constable. In my judgment it could not possibly be said that they were within their rights in attacking the constable in the manner they did and causing him the injuries which he received, and that, in my opinion, would dispose of that point by itself. But there are other matters which are to be considered and which, in my opinion, show that the first point at any rate is not one which can be sustained.
There is the clearest possible evidence in the case that the constable had information regarding a theft and consequently the case came within section 54 of the Code of Criminal Procedure which provides that
“Any police officer may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned.”
Now both from the evidence and from the finding of both the Courts in this case it is clear that the provisions of this section have been complied with, and therefore, in my opinion, quite definitely the first point raised fails.
But the substantial question in the case is whether the conviction is bad by reason of the fact that the applicants were not originally charged under section 149 of the Penal Code. Without referring to the section in that behalf it is clear and well known, that if persons have committed an offence and they are to be tried for that offence they must be charged with that offence. The learned Advocate for the applicants states that they were not charged with this offence and therefore the conviction is bad. Obviously the argument depends upon whether section 149 provides for an offence or not. Quite apart from authority, on the plain reading of that section I would hold that section 149 of the Penal Code does not define any definite offence but merely provides that in certain circumstances persons may be convicted of an offence under the Indian Penal Code provided always that certain conditions are complied with. One of the authorities at any rate to which I shall refer puts the matter in another language as the judgment of Sir John Edge, C.J, of the Allahabad High Court states that section 149 does not provide for a separate offence but merely is a declaration that persons found in certain circumstances cannot set up as a defence the fact that they themselves did not commit that offence by their own hands. I refer to the case of Queen Empress v. Bisheshar. There one of the questions to be decided was whether section 149 created an offence or not and reading from the head-note it is stated that section 149 of the Penal Code creates no offence but was intended to make it clear that an accused person whose case falls within its terms cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly. That substantially sets out the material part of the learned Chief Justice's judgment on this question. There is another authority on this point also, the case of Theethumalai Gounder v. King Emperor. The facts of the case there were different from the facts of the case which we have before us; but in order to come to a decision on the point which was at issue in that case it was necessary to discuss the same question, whether section 149 created an offence or not, and eventually the learned Judges of that Court made a reference to the Full Bench on this question amongst others. In the course of his judgment Phillips, J., said that in an unreported case the very question which we have had to debate in this case came up for decision and apparently the Madras High Court decided in that unreported case that where the charge was sufficiently clear the mere omission of section 149 from the charge was not sufficient to vitiate the conviction for the substantive offence. On reference to the Full Bench this question of section 149 came up for discussion. There, as in the decision by Sir John Edge, the same conclusion was arrived at that section 149 did not create an offence but was, as I have stated, merely a declaration that persons would be held liable for the substantive offence in certain circumstances. In my judgment, therefore, this section 149 does not create an offence. The question, therefore, of whether the applicants in this case were prejudiced or not seems to me to be immaterial and for this reason, if it is an offence then if they are not charged with that offence it becomes necessary to determine whether they have been prejudiced; but as have found section 149 does not create an offence; then quite clearly the applicants' had no right to have that section mentioned in the charge and it cannot be said, therefore, that there was any prejudice caused.
It is further argued that as a matter of practice section 149 is mentioned in a charge like this. This, therefore, needs consideration. But matters of practice can not prevail over rules of law and it would be impossible, in my judgment, in this case to decide that the applicants were prejudiced because in some cases or generally section 149 is mentioned in the charge. Quite clearly in this Case in any event the applicants had notice that an offence under section 353 had been committed. They were each charged with it, and their defence, in my view, must have been addressed to, the same, question whether section 149 was mentioned or whether it was not. I cannot see how it could be said in those circumstances that they, could have been prejudiced in their defence by the omission to mention section 149.
Another important question has been argued and that is this. Originally, nine people were charged under section 147. The learned Sessions Judge was of the opinion, as I have already mentioned, that the evidence was not sufficiently clear against five to identify them as being participants in this unlawful assembly. He therefore confirmed the conviction of four only. The learned Advocate for the applicants therefore argues that as only four have been found to have been members of this assembly it cannot be treated as an unlawful assembly within section 147 of the Penai Code. To hold that would be doing some violence to the evidence because the facts are simply these. The constable says that there were twenty people or so surrounding him, and that ten or eleven were either striking him or attempting to strike him. He purported to identify nine not as knowing them by name but as being able to identify them, and as I have stated the learned Sessions Judge was satisfied with the identification of four only. Can it be stated that although the constable is definite that there were some twenty people and as he was able to identify four only it shows that the assembly was not an unlawful assembly. In my opinion that cannot be so, for as I have said it would be doing violence to the evidence in this case and violence also to the true meaning of section 147. There is no doubt, in my opinion, from statements made in the judgment that there were more than five persons who composed this unlawful assembly and four, of them have been identified and at any rate so far as that point is concerned in my judgment they were rightly convicted under section 147.
A further point which arises also for determination with regard to this last question is that Pillu could not in any event be said to have been a member of this unlawful assembly as the object of it was to rescue him. But the evidence is that as soon as Pillu was rescued he joined with the others in attacking the constable and if he makes himself in that manner a member of the unlawful assembly then it is clear that so far as that point at any rate is concerned Pillu was rightly convicted.
Next, a point has been raised as to the test identification and the learned Advocate argued perhaps somewhat faintly that it has not been properly proved. It appears that a report went in without any proper proof but on reference to the evidence in the case it appears that a note was made by the Magistrate of the fact that the report of the test identification went in and there was no objection from either the prosecution or the defence; that point must necessarily fail.
The other question was the question of sentence. Each of the applicants has been sentenced to undergo rigorous imprisonment for one year and also to pay a fine under section 147. Having regard to the gravity of the offence, attacking the constable in the exercise of his duty, and the conviction having been sustained, it seems to me impossible to interfere in our discretion with the sentences.
In discussing the point relating to section 149 of the Code I should have mentioned that learned Counsel referred us to a decision of the Calcutta High Court which gives a different view of the section from that of the cases to which I have refer red. However on the plain reading of the section I would prefer to follow the decisions of the Allahabad and Madras High Courts.
The rule is therefore discharged.
Adami, J.:— I agree.
Rule discharged.
S.A.K
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