# MAHADEVA SHARMA & OTHERS v. STATE OF BIHAR

- **Citation:** [1966] 1 S.C.R. 18
- **Court:** Supreme Court of India
- **Decided:** 1965-04-21
- **Case number:** Criminal Appeals Nos. 209 of 1962
- **Bench:** A. K. Sarkar, K. Subba Rao, M. H!Dayatullah, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahadeva-sharma-others-v-state-of-bihar-3522
- **Pages:** 7

## Headnote

Criminal Lan·-A/ternative chGJ·ges under s. 302 read with s. 34 and
8. 302 read with 149 of the Indian
Penal Code-No charge
under
8. 147 ors. 148--Conviction under s. 302 read with s. 149-Legallty.
The appellants were charged alternatively under s. 302 read
with
s. 149 and s. 302 read with s. 34 of the Indian Penal Code, 1860. They
were convicted under s. 302 read with s. 149. On the question whether
the conviction was legal, when they were not charged
and
convicted
under s. 147 ors. 148.
HELD : It \Va.Y not obligatory to charge th·e accused under s. 147 or
s. 148 before s. 149 could be utilized against them. [22D; 23]
For the application of s. 149 there must be an unlawful assembly.
If an offence is committed in prosecution of the common object of that
assembly or is such a'i the members of the
unlawful
assembly
know
to be likely to be committed then whoever ii:; a member of that assembly
at the time th·~ offence is committed, is guilty.
A charge under sections
143 or 147 is not a condition precedent before se.ction 149 is utilized.
because, these arc implied in circumstances in which s. 149 is used, and
mu&t always be present when the charge is laid for an offence like
murder \Vith the aid of s. 149.
There can be proof under s. 149. of
the existence of an unla\vful asscn1bly of .the coffimon object and o( the
part played by that unlawful assembly or any of its
members,
same
as tmder s. 143 or s. 147 or s. 148.
There may be additional charges
under these sections to guard against failure of the charge for an offence
read, ·with s. 149, but the other charges cannot be regarded as condition
precedent. [22 B-C; 23 C-D, H; 24A]

## Text

MAHADEVA SHARMA & OTHERS
v.
STATE OF BIHAR
April 21, 1965
[A. K. SARKAR, K. SUBBA RAO, M. H!DAYATULLAH AND J. R.
MUDHOLKAR, JJ.]
Criminal Lan·-A/ternative chGJ·ges under s. 302 read with s. 34 and
8. 302 read with 149 of the Indian
Penal Code-No charge
under
8. 147 ors. 148--Conviction under s. 302 read with s. 149-Legallty.
The appellants were charged alternatively under s. 302 read
with
s. 149 and s. 302 read with s. 34 of the Indian Penal Code, 1860. They
were convicted under s. 302 read with s. 149. On the question whether
the conviction was legal, when they were not charged
and
convicted
under s. 147 ors. 148.
HELD : It \Va.Y not obligatory to charge th·e accused under s. 147 or
s. 148 before s. 149 could be utilized against them. [22D; 23]
For the application of s. 149 there must be an unlawful assembly.
If an offence is committed in prosecution of the common object of that
assembly or is such a'i the members of the
unlawful
assembly
know
to be likely to be committed then whoever ii:; a member of that assembly
at the time th·~ offence is committed, is guilty.
A charge under sections
143 or 147 is not a condition precedent before se.ction 149 is utilized.
because, these arc implied in circumstances in which s. 149 is used, and
mu&t always be present when the charge is laid for an offence like
murder \Vith the aid of s. 149.
There can be proof under s. 149. of
the existence of an unla\vful asscn1bly of .the coffimon object and o( the
part played by that unlawful assembly or any of its
members,
same
as tmder s. 143 or s. 147 or s. 148.
There may be additional charges
under these sections to guard against failure of the charge for an offence
read, ·with s. 149, but the other charges cannot be regarded as condition
precedent. [22 B-C; 23 C-D, H; 24A]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.
209 of 1962 and 3 of 1963.
Appeals by special leave from the judgment and order dated
August 30, 1962, of the Patna High Court in Government Appeal
No. 33 of 1959 and Cr. Appeal No. 392 of 1959 respectively.
S. P. Varma, for the appellants (in Cr. A. No. 209 of 6;2).
K. K. Sinha, for the appellants (in Cr. A. No. 3 of 1963).
U. P. Singh, for the respondent (in both the appeals).
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MAHADEVA v. STATE (Hidayatullak, J.)
I~
The Judgment of the Court was delivered by
Hidayatullah J.
In these two appeals by nine persons, who
have been convicted under s. 302/149, Indian Penal Code, special
leave is limited to one question of law, namely, whether the accused could be legally convicted under the above sections when they
were not charged and convicted under s. 14 7 or s. 148 of the
Indian Penal Code'!
It appears from the judgment under appeal
that tl1ere was a difference of opinion on this point in the High
Court at Patna and the appeals in the High Court wer" disposed
of by a Full Bench which held that charges under ss. 147 and
148 were not necessary before conviction under s. 302, Indian
Penal Code could be made with the aid of s. 149, Indian Penal
Code.
In view of the limited nature of the appeals only the essential
facts may be stated.
The person who lost his life was one Misari
who was related to some of the accused persons.
In the past
there were other incidents.
In 1955 one Ajablal was murdered
and some of the present accused were prosecuted but were acquitted.
Subsequently, one Baldeo Sharma was murdered and some
of the prosecution witnesses in this case were charged with that
offence.
At the time of the judgment under appeal (August
30, 1962) an appeal was pending in the Patna High Court against
the conviction of the accused in that case.
The present occurrence took place on April 24, 1958. The
prosecution case is that Misari was going in the morning to call
labourers when he was attacked by the appellants with diverse
weapons.
He died as a result of his injuries and a case was
registered under s. 302, Indian Penal Code.
The appellants
were charged at the trial alternatively under s. 302/ 149 and
302/34, Indian Penal Code.
The Additional Sessions Judge,
Monghyr convicted three of the appellants on both the charges,
sentencing them to imprisonment for life on the first charge only.
The remaining accused were acquitted.
Appeals by those who
were convicted and by the State Government against the acquittal of the others were heard together and were disposed of by the
common judgment now under appeal.
The appeal of the State
Government was allowed and that of the three convicted accused
was dismissed.
As a result all the original accused were convicted under s. 302/ l 49, Indian Penal Code and were sentenced to
imprisonment for life. During the hearing of the appeals a point
was raised by the State counsel in the appeal by the State that the
trial was bad inasmuch as no charge under s. 147 or s. 148 had
been framed.
The Divisional Bench thinking that the point might
20
SUPREME COURT REPORTS
[1966] l s.c.
benefit the convicted accused allowed it to be raised but referred
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the appeals to a Full Bench in view of an earlier decision on this
point with which they did not agree.
The Full Bench overruled
the earlier decisions and came to the conclusion that it was not
obligatory for the validity of the conviction under s. 302/ 149,
Indian Penal Code that a charge under s. 147 or s. 148 should
have been framed and a conviction under those sections recorded.
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The charges against the appellants were as follows :
"First :-That, you on or about the 24-4-58 at 7 a.m.
at village .lhanjhra P. S. Parbatta, district Monghyr
were members of unlawful assembly, armed with gun,
bhala and chhura (dagger) and in prosecution of tl1e
common object to murder Misari Sharma you all caused
such bodily injury to Misari Sharma, which caused his
death, the offence punishable under section 302 I.P.C.
and thereby committed an offence punishable under
section 149/302 of th~ Indian Penal Code and within
the cognizance of Court of Sessions."
"That you, on or about the 24-4-58 at 7 a.m. at village
Jhanjhra P. S. Parbatta, district Monghyr in furtherance
of the common intention of you all caused the death of
Misari Sharn1a, imcntionally and knowingly, and thereby
committed an offence punishable under section 302/34
of the Indian Penal Code, aud within my cognizance
and I hereby direct that you be tried by the said court
on the said charge".
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No charge under s. 147 or s. 148 was framed and the question is
whether the couviction under s. 302./149, Indian Penal Code
could legally be recorded in the absence of such a charge or
charges.
Mr. S. P. Verma has brought to our notice Jhe earlier
unreported decisions of the Patna High Court which were conG
sidered and overruled by the Full Bench and has contended that
they were correct and the judgment under appeal is erroneous.
Section 149 occurs in Chapter VIII of the Indian Penal Code
which deals with offences against the public tranquility.
That
Chapter consists of twenty-one sections and most of them are concerned with assemblies which are a danger to public peace.
Such
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assemblies are designated unlawful assemblies and the
punishment for membership varies in severity according as the assembly
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MAHADEVA v. STATE (Hidayatullah, J.)
21
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only menaces the public peace or actually disturbs it.
The
scheme of the Chapter may now be examined.
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Section 141 defines an unlawfnl assembly as an assembly of
five or more persons the common object of which is inter aUa to
coinmit an offence.
There are five clauses which describe the
many kinds of common objects which render an assembly unlawful.
These clauses need not be reproduced here for nothing turns
on them in the present case.
Here we are concerned with the
offence of murder and according to the charge the common object
of the accused who had formed themselves into an assembly was
to commit the murder of Misari.
This common object has been
held proved and there can thus be no question that this was an
unlawful assembly.
Continuing again with the scheme of the
Chapter, we next see that s. 142 says that a person is considered
to be a member of an unlawfnl assembly, if, being aware of facts
which render any assembly an unlawful assembly he intentionally
joins that assembly or continues in it.
A mere membership of an
unlawfnl assembly is punishable under s. 143.
Under the next
section heavier punishment is awardable to a person who joins
an unlawful assembly armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death.
Section 145 next provides for a similar higher punishment for a
person who joins or continues in an unlawful assembly knowing
that it has been ordered to disperse.
These sections make membership as such of an unlawful assembly punishable, though in
varying degrees.
Section 146 then defines the offence of rioting. This offence
is said to be committed when the unlawfnl assembly or any member
thereof in prosecution of the common object of such assembly
uses force or violence.
It may be noticed here that every member
of the unlawful assembly is guilty of the offence of rioting even
though he may not have himself used force or violence.
There is
thus vicarious responsibility when force or violence is used in
prosecution of the common object of the unlawful assembly. The
next two sections prescribe punishment for the offence of rioting.
Section 14 7 punishes simple rioting.
Section 148 · punishes
more severely a person who commits the offence of rioting
armed with a deadly weapon but the section makes only a person
who is so armed liable to higher punishment.
Section 149 then
creates vicarious responsibility for other offences besides rioting.
The section provides as follows :
"149. Every member of unlawful assembly guilty of
offence committed in prosecution of common object.
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SUPREME COURT
REPORTS
[1966] l S.C.R·
If an offence i.' committed by any member of an unlawA
ful assembly in prosecution of the common object of
that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that
object, every person who, at the time of the commit:ing
of that offence, is a member of the same assembly, is
guilty of that offence".
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For the application of the section there must be an unlawful
assembly.
Then if an offence is conuuitted in prosecution of the
common object of that assembly or is such as the members of the
unlawful assembly know to be likely to be committed then whoever is member Clf that assembly at the time the offence is com- c
mitted is guilty.
111e remaining sections do not help in the
present discussion.
This being the scheme, is it obligatory to charge a pei;on
under s. 147 ors. 148 before s. 149 can be utilized'?
Section 149
docs not state this to be a condition precedent for its own appli- o
cation.
No other sectiClll; prescribe_s this procedure. Sections 146
~•ml 149 represent conditi~ns under which vicarious liability arises
for the acts of others. If force or violence is used by a member
in the prosecution of the common object of the unlawful assembly
cv~ry member of the assembly is rendered guilty of the offence
of rioting and is r,unishable for that offence under s. 147. The E
offence of rioting- must, of course, occur when members arc charged
with murder as the common obje~t of the unlawful assembly.
Section 148 crcaLcs liability on persons armed with deadly weapons
and it is a distinct offence.
It need not detain us.
If a person
is not charged under s. 147 it docs not mean that s. 149 cannot
he used.
When an offence (such as murder) is committed in
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prosecution of the comnion object of the unlawful assembly or
the offence is one which qhe members of the assembly knew to be
likely to he committed In prosecution of the common object,
individual r~sponsibility i'i replaced by vicarious responsibility and
every person who i' a member of the
unlawful
assembly
at
the time of the committing of the offence becomes guilty.
It is
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not obligatory to charge a person under s. 143. ors. 144 when
charging him withs. 147 ors. 148.
Similarly. it is not obligatory to charge a person under s. 143 ors. 147 when charging him
for ~m offence with the aid of s. 149. These section~ are implied.
It may be useful to add a charge under s. 147 and 148 with
charges under other offences of the Penal Code read with s. 149.
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hut it is not obligatory to do so.
A person may join an unlawful
assembly and he guilty under s. 143 or 147 or 148 hut he may
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MAHADEVA v. STATE (Hidayatullah, J.)
23
A cease to be its member at the time when the offence under s. 302
or some other offence is committed.
He would not in that event
be liable for the other offence for s. 149 would not apply to him.
'Ibe present case is not of that kind.
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The fallacy in the cases which hold that a charge under s. 147
is compulsory arises because they overlook that the ingredients of
s. 143 are implied in s. 147 and the ingredients of s. 147 are
implied when a charge under s. 149 is included.
An examination of s. 141 shows that the common object which renders an
11Ssembly unlawful may involve the use of criminal force or show
of criminal force, the commission of mischief or criminal trespass
or other offence, or resistance to the execution of any law or of
any legal process. Offences under ss. 143 and I 4 7 must always
be present when the charge is laid for an offence like murder with
the aid of s. 149, but the other two charges need not be framed
separately unless it is sought to secure a conviction under them.
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It is thus that s. 143 is not used when the charge is under s. 14 7
ors. 148, ands. 147 is not used when the charge is under s. 148.
Section 147 may be dispensed with when the charge is under s. 149
read with an offence under the Indian Penal Code.
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The charges that are framed against the appellants and which
we have reproduced earlier, contain all the necessary ingredients
to bring home to each member of the unlawful assembly the
offence of murder with the aid of s. 149.
The prosecution has
proved the existence of an unlawful assembly, its common object
which was murder of Misari and the membership of each of the
appellants.
Nothing more was necessary.
Of course, i! a charge
had been framed under s. 14 7 or 148 and that charge had failed
against any of the accused then s. 149 could not have been used
against him.
The area which is common to ss. 147 and 149 is
the substratum on which different degrees of liability are built and
there cannot be a conviction with the aid of s. 149 when there is
no evidence of such substratum.
It is quite a different thing to
say that to lay down this substratum one must frame first a charge
under s. 143, then a charge under s. 147 and then a charge under
11. 149.
The last named section is not dependent on the others
becanse the others are implied in circumstances in which s. 149
is used.
There can be proof under s. 149 of the existence of an
unlawful assembly, of the common object and of tl1e part played
by the unlawful assembly or any of its members, same as under
s. 143 ors. 147 ors. 148. There may be additional charges under
these sections to guard against failure of the charge for an offence
24
SUPREME COURT REPORTS
[1966] l S.C.R.
read with s. 149 but tbe other charges cannot be regarded as
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condition precedent.
We agree with the conclusion of the Full Bench and therefore
confirm the judgment under appeal.
The appeals will be dismissed.
Appeals dismissed.
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