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

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.

Judgement reviewed by Bhaswati Goldar

Mahendra_vs_State_of_MP

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