1. This is a revision application filed by 78 out of 108 accused, who are committed by the Judicial Magistrate, First Class, Court No. 1, Sholapur, in Criminal Case No. 1293 of 1967, to be tried before the Sessions Court for the offences under Sections 147, 148, 149, 151, 152, 295, 323, 325, 332, 302, 120-B, 109 and 114 of the Indian Penal Code with the respect to a riot in Sholapur City on September 17, 1967. The petitioners have prayed that the order of committal in so far as they are concerned is contrary to law, because there was no evidence before the learned Judicial Magistrate against them and the learned Magistrate failed to apply his mind to the materials before him and wrongly committed the petitioners to be tried by the Sessions Court.
2. The relevant facts that led to the prosecution of the said 108 persons in connection with the aforesaid riot may be briefly stated as follows:-
On 'Anant Chaturdashi day', which happened to fall on September 17, 1967, the Hindus in Sholapur took out a procession for immersing Ganpati Idols. Those Ganpati Idols used to be installed on the day of Ganesh Chaturdashi at different places. On the Anant Chaturdashi day, procession of these Ganapties used to be taken out by the Hindus and the Ganpati Idols used to be immersed at a place known as 'Ganesh Ghat'. That is how procession was taken out every year and on September 17, 1967 the procession started from a place known as Datta Chowk and was going via Navi Peth, Choupad, Punjab Talim Masjid, Mallikarjun Temple etc., through the roads of the City of Sholapur.
3. The prosecution alleged that the petitioners and other accused agreed together to do some illegal acts and for the purpose assembled together near Punjab Talim Masjid and attacked the procession of Ganpati immersion with stones, brick-bats and soda water bottles. In prosecution of this conspiracy, it is alleged that all the accused attacked the said procession at about 8-45 to 9-30 P. M. on that day when the procession was passing in front of Punjab Talim Masjid by throwing stones, brick-bats and soda water bottles etc. They had collected at Punjab Talim Masjid and also in the houses near about the masjid in different groups. They shouted slogans like This shouting of the slogans and throwing of stones, brick-bats and soda water bottles happened when the procession accompanying what is called Jali Road Police Station Ganpati, which was a Ganpati Idol installed near the Jali Road Police Station by Hindu Policemen, was passing near the Punjab Talim Masjid. The houses surrounding Punjab Talim Masjid were mainly of the Muslims. The first Ganpati procession was that of Deshmukh and that Ganpati Procession had arrived near Punjab Talim Masjid at about 5-0 P. M. or so. Thereafter the procession of Ganpati Idols was passing one after the other. At about 8-15 P. M. or so the D. A. V. College Ganpati procession had arrived at Punjab Masjid.
4. Anticipating likelihood of riot, special police band bust was made at that place and Deputy Superintendent of Police Shri Pawar was in-charge of this bandobust. certain citizens had formed a peace committee which was called 'The Madhyawarti Ganesh Utsav Mandal' and on which accused No. 107 had become a member. These citizens were also helping the police in keeping peace while the procession was marching with the Ganpatis. It is alleged by the prosecution that Accused No. 108 Jainuddin, who as stated above, was a member of the peace committee and the Chief Mutavalli of the Punjab Talim Masjid, was standing with other Muslims in the verandah of the Punjab Talim Masjid. Accused No. 107 Mahbub Bakshubhai Shaikh was also present at that time and he was also alleged to be a member of the Madhyawarti Ganesh Utsav Mandal. He appeared to be the leader of the Muslims. When the D. A. V. College Ganpati procession arrived at the Punjab Talim Masjid the students were shouting slogans like The students in the procession were loitering there for some time and the police and members of the Madhyawarti Ganesh Utsav Mandal were trying to see that the procession went ahead peacefully. While this was going on, it appears that some students went to one, Dhanshetti and showed some stones alleging that they were thrown at them. Accused No. 107 objected to the behaviour of the students and told Dhanshetti that the students were trying to create trouble. Dhanshetti told him not to worry and let the procession pass peacefully as only few Ganpati Idols had to pass at that time. Thereafter the D. A. V. College procession went ahead. After that another small procession of one Ganpati had passed. It was thereafter that the Jali Road Police Station Ganpati, referred to above, arrived at Punjab Talim Masjid. Witness Babu Survase the head Constable and one deceased Bhimashankar Lad, police constable and several other policed constables were on duty in plain clothes in the procession. Deceased Bhimashankar Lad was standing near an electric pole by the side of the Punjab Talim Masjid. As soon as the Jail Road Police Station Ganpati arrived at the Punjab Talim Masjid, accused No. 107 and No. 108 were not to be seen there. It is alleged by the prosecution that they went hurriedly in the lane it is also alleged that these two accused gave signals by saying .
5. Immediately after the signal was given, stones, brick-bats and soda water bottles, thrown by the Muslims standing in groups from inside the houses and from the roof surrounding the Punjab Talim Masjid, fell on the procession. The Muslims also started shouting slogans Dhanshetti and several others in the procession had received injuries. Accused No. 1 and 5-7 other persons were standing on the roof adjacent to the Punjab Talim Masjid. Accused No. 1 threw a big stone on the head of deceased Bhimashankar Lad, the constable in plain clothes standing near the electric pole. Accused No. 1 was standing Bhimashankar Lad at the height of 6-7- feet above him. Bhimashankar Lad collapsed. Accused No. 1 got down and entered into the Masjid and tried to run the away. Bhimashankar Lad died on the way to the hospital. Some constables entered the Punjab Talim Masjid to catch accused No. 1. Accused No. 1 was standing on a stair-case in the Masjid . He had a stone is his hand. On being asked to throw it away, accused no. 1 threw it away. He was then arrested by the constables and was taken to the Phoujdar Chawdi Police Station. Accused Nos. 15, 27, 37 and 45 were identified as the persons, who were standing in the company of accused No. 1 by some of the witness whom the police subsequently examined and interrogated.
6. Shouting of slogans and throwing of stones etc., was not stopped after this incident. It continued and so Deputy Superintendent of Police Pawar and others warned the Muslims occupying the houses, from which the stones were being thrown, to disperse but this warning was not heeded. Thereafter, with the permission of the Executive Magistrate, who was on the spot, Deputy Superintendent of Police Pawar ordered firing. Six or seven rounds were fired and a situation came under control. Deputy Superintendent Pawar asked Police Sub-Inspectors Atre, Joshi, Patil and Punekar to round up the persons in the houses from where the stones had come. Accordingly, Police Sub-Inspectors Punekar rounded up 26 accused from the houses in North Kasaba, viz. houses Nos. 457, 457-B, 481 and also house No. 615. Tow out of the 26 were found on the road. The persons arrested by Punekar were accused Nos. 6, 9, 15 to 17, 21, 22, 25, 27, 30, 32, 37, 39, 45, 51, 51, 54, 63, 74, 83, 86, 93, 94, 95, 97, and 100. Out of these accused, accused Nos. 15, 27, 37 and 45 were seen throwing stones by other witnesses.
7. Similarly, Police Sub-Inspector Joshi rounded up 24 persons from the houses Nos. 561 and 562. These two houses are situated in front of the Masjid and Deputy Superintendent of Police Pawar directed S. I. Joshi to round up the persons in the houses because stones were being thrown from these houses. The 24 persons rounded up by S. I. Joshi are accused Nos. 8, 12, 28, 34, 40, 41, 53, 55, 58, 62, 67, 68, 75 to 77, 80, 81, 84, 85, 90, 96 and 102. Out of these accused, accused Nos. 55, 59, 68, 69, 76 and 84 were identified by the other prosecution witnesses.
8. According to the directions of Deputy Superintendent of Police Pawar, S. I. Patil also rounded up 26 persons from the houses Nos. 559 & 560 as stones were thrown even from these houses. The persons rounded up by S. I. Patil are accused Nos. 2, 7, 10, 11, 13, 14, 18, 20, 26, 31, 33, 35, 36, 38, 42 to 44, 50, 56, 64, 67, 72, 73, 78, 79, and 82. Out of these accused only accused Nos. 7, 14, 20, 26, 33, 64, 72, 73, 78, 79, and 82 were identified as shouting slogans and throwing stones by the prosecution witnesses.
9. At the same time S. I. Atre rounded up 25 persons from houses Nos. 455, 611 and 612 from where the stones etc., were being thrown. The persons arrested by him were accused Nos. 3 to 5, 19, 23, 24, 29, 46 to 49, 57m 60, 61, 66, 70, 71, 87, 88, 89, 91, 92, 98, 99, and 101. Total number of persons arrested thus came to 102 persons and they are accused nos. 1 to 102 ordered to be committed to the Sessions Court. Accused Nos. 103 to 108 were arrested on September 20, 1967, as they were later in identified by some persons as the persons, who were throwing stones etc. After completing the investigation all the 108 persons were charge-sheeted under Ss. 147, 148, 149, 151, 152, 295, 323, 325, 332, 302, 120-B, 109 read with 114 of the Indian Penal Code.
10. On the basis of the said charge-sheet the committal proceedings were held by the Judicial Magistrate, first class Court No. 1, Sholapur. during these proceedings, the prosecution examined five out of 15 witnesses cited in the charge sheet, to establish a prima facie case against the accused. On the basis of the evidence and the materials before the Judicial Magistrate, the Judicial Magistrate committed all the 108 persons to be tried, as stated above, as he came to the conclusion that:-
' The presence of the accused at the spot and they having been arrested immediately on the spot are sufficient reasons, for committing them for trial by the Court of session'.
The learned Judicial Magistrate also held that:-
'It was not within my jurisdiction to discuss anything more about their specific identification and come to a different conclusion'.
He further held that the evidence before him showed that the attack on the procession was a pre-planned one because in the first place there were 22 pieces of brick-bats recovered from house No. 457. secondly, the Punjab Talim Masjid was considered to be a hot spot where similar incidents were alleged to have taken place on previous occasion and hence special band bust was made at that place. Some of the accused had applied for leave stating that they were volunteers of the Punjab Talim Masjid. The further circumstances relied on by the Magistrate was that the Muslims were particularly aggrieved with the Jail Road Police Station because at the time of Moharrum in the year 1966 the Jail Road Police had objected to the Muslims carrying 43 marshals and this resulted in a morcha of about two to three thousand Muslims of about two to three thousand Muslims to the Collector's Office and suspension of the Moharrum could be celebrated, it was only after the Collector gave assurance that the Moharrum could be celebrated, it was celebrated. The learned Magistrate also relied on the evidence on record regarding the roles played by accused Nos. 107 and 108 of going into a lane and saying. The learned Magistrate further relied on the fact that the evidence on the record showed that the Muslims from that locality had removed their ladies and children from those houses and left them at houses at Panchha Peth. The learned Magistrate concluded on the basis of these circumstances:
'All these circumstances go to show that the alleged attack seemed to be preplanned one and there was a criminal conspiracy. The accused formed unlawful assembly at the spot. They did not disperse in spite of the orders of the police on duty there and continued the attack throwing stones etc. There is evidence on record to show that Ganpati Idols of Jail Road Police, Shivakaran Mangilal and Hiralal Pukale, were damaged and that was with intent to insult the religious feelings of the Hindus. There is also evidence on record to show that about 23 police were in injured and that was with the intention to deter them from discharging their duties. Number of persons in the procession received simple hurts. Vishvanath Banshetti and Bhojappa received grievous by accused No. 1 intentionally knowingly to cause his death and committed murder. From all this I find that there are sufficient grounds to commit the accused for trial by the Court of Session under the above charged offences'.
11. In view of these findings the learned Magistrate committed all the accused Nos. 1 to 108 under Sections 207-A (100 ) of the Criminal Procedure Code to stand their trial before the Court of Session. Sholapur for the offences for which they were charged. The said order passed by the learned Magistrate is challenged by the petitioners on the ground that there is no evidence on the record to justify the committal order and hence the said order is contrary to law.
12. Mr. Peerbhoy, the learned Counsel appearing for the petitioners, submitted that there was not a title of evidence before the Judicial Magistrate which justified the committal order. He, however, did not press the application of Petitioner No. 15, Kasimsaheb Allaudin Shaikh, Petitioner No. 17 Muruddin Kasimall Kachi. Petitioner No. 25 Mohamed Saheb Madar Saheb Shaikh and Petitioner 35 Abdul Gafoor Dawal Shaikh because Mr. Peerbhoy conceded that there is some evidence from which the Magistrate could say that there is prima facie case against these four accused. Petitioner No. 15 was original accused No. 19. He was arrested by P. S. I. Atre on the road. It appears that he was identified as one of the persons throwing stones by one of the witnesses Manohar Maruti Pargunde, examined before the Judicial Magistrate. It is not the function of the Judicial Magistrate to consider whether this identification by pruned is sufficient to convict the accused, Mr. Peerbhoy, therefore, rightly conceded that it cannot be said that there was no evidence against petitioner No. 15. Similarly, petitioner No.17, who was original accused no. 22, petitioner No.25, who was original accused No. 32 and petitioner No. 35, who was original accused No. 44 were identified by pruned as persons, who were participating in throwing of the stones and brick-bats and hence so far as these four petitioners are concerned, Mr. Peerbhoy has fairly conceded that he cannot move this Court for setting aside the order of committal against them.
13. Mr. Peerbhoy has however, strenuously urged that the learned Magistrate was in error in discuss anything about the jurisdiction to discuss anything about the specific identification of the accused merely because there was evidence on the record to show that number of the accused persons, who were not residing in a particular house were found arrested in the house and also because there were other circumstances to prove their presence to consider that there is a pima facie case to commit all of them for trial to the court of session. He contended that it was the duty of the Magistrate under section 207-A of the criminal Procedure Code to consider the case of each of the accused and form an opinion that the accused should be committed for trial under Section 207-A (6) of the Criminal Procedure Code. The Magistrate has also a duty to find out if the evidence and documents before him disclose no grounds for committing the accused persons for trial the said Clause (6) of the Section 207-A of the Criminal Procedure Code requires the Magistrate to discharge the accused after recording his reasons unless it appears to the Magistrate that such persons should be tried before himself or some other Magistrate, Mr. Peerbhoy submitted that the learned Magistrate has not at all appreciated the evidence and the documents before him in the context of his duties under Section 207-A of the Cr. P. C. but the Magistrate had mechanically committed all the 108 accused notwithstanding that there is no evidence at all to justify an inference of even a prima facie case against the petitioners, other than petitioners Nos. 15, 17, 25 and 35. Mr. Peerbhoy, therefor, submits that the order of committal is contrary to law and must be quashed in so far as the said petitioners, other than petitioners Nos. 15, 17, 25 and 35 are concerned.
14. Mr, Kanade the learned Assistant Government Pleader has strenuously urged that the order of committal against all the accused is legal and proper in the facts and circumstances of the case inasmuch as the said order is based not merely on the admitted presence of all the petitioners in unlawful assembly but their continuing in the unlawful assembly in spite of being ordered to dispose. He contended that the learned Magistrate has taken into consideration the following eight circumstances as justifying the committal of all the accused for the offences charged against them:-
(1) Except petitioners Nos. 1, 15, 30, 33 and 51, who were arrested on the street, all the other petitioners were found in the houses. Most of them were found in the houses which did not belong to them.
(2) There can be no doubt that stones, brick-bats and soda water bottles were thrown from the houses which the petitioners and other were arrested.
(3) Except petitioners Nos. 3, 4, 15, 18, 36 and 38, all other petitioners were not even from the locality of the Punjab Talim Masjid but some of them had obtained special leave to be present at the scene of the offence from their respective offices.
(4) It is evident from the record that no ladies were found in all these houses from where these persons were arrested and witness No. 145 mentioned in the charge-sheet ad witnesses No. 43, 44 and 45 stated categorically that the Muslim ladies and children had left their respective houses in the morning as they were expecting riot in the evening.
(5) It is also evident that the Muslims at Sholapur had a particular grudge against the part of the procession taking the Jail Road Police Station Ganpati as these policemen had on a previous occasion obstructed the Muslim procession at the Moharrum and that is how even though the D . A. V. College Students Ganpati had passed the Masjid before the Jail Road Ganpati shouting slogans and abuses, noting was done to them but as soon as the Jail Road Ganpati procession came ear the Masjid and Jainuddin Abdul Rahman Shaikh accused No. 108 shouted and it was thereafter that the stones, brick-bats and soda water bottles were thrown.
(6) A large number of stones and brick-bats which were found by the panchas at the scene of the offence is another circumstance which shows that the petitioners and the other accused had deliberately gathered in the houses and ad collected the stones and brick-bats for being thrown on the procession carrying Ganpati Idols.
(7) The fact that a police constable in plain clothes collapsed as a result of a stone being thrown on the head by the accused and large number of police in this case and others were injured and a police had to cordon off the whole area to maintain peace, itself, shows that all these persons, who were found in the houses were determined to fight even with the police and defy them.
(8) The most important circumstances is that in spite of the warnings by the police, the persons who had gathered in the houses continued to shower stones and brick-bats defying that warning. The fact that Dy. S.P. Pawar had to use fire arms with the permission of the executive Magistrate, who was present there, shows that all the persons who were found in those continued in those houses in spite of the warning given by the police and in defiance of the order of the Dy. S. P. Pawar to disperse.
15. Mr. Kanade argues that these eight circumstances are the circumstances on the basis of which a prima facie case was made out against all the 108 accused in respect of the offences under Section 147 to 149, 151, 152, 295, 323, 325, 332, 120-B, 109 and 114 of the Indian Penal Code. Mr. Kanade, however, fairly conceded that so far as petitioners other than petitioners Nos. 15, 17, 25, 35, are concerned there was no material in any of the statements of the witnesses mentioned in the charge-sheet which showed that any of them actively participated in the rioting in any manner. He rightly conceded that Mr. Peerbhoy was right in his contention that there was no witness to depose that any of these petitioners other than petitioners Nos. 15, 178, 25 and 35 were found doing anything unlawful except being present in the houses from where they were enough to make out a prima facie case against them for abetment and conspiracy with the accused who threw stones, brick-bats and injured Ganpati Idols and several police officers and constables. He also submitted that it was evidence that they committed offences under Section 151 or 152, I. P. C. inasmuch as they continued to be present in the houses where the accused, who were throwing stones and brick-bats at the procession were committing the offences defying the order made by the Dy. S. P. Pawar to disperse and get out of the houses. He, therefore, submits that the evidence on record was not sufficient to convict but that question can be decided only at the trial after all the prosecution evidence is led and not at the committal stage where the Court was only concerned with the question as to whether a prima facie case was made out by the prosecution for committing the accused for the trial. He submitted that the evidence and the documents before the Magistrate were sufficient to commit the accused for the trial and it was not right to hold that there was no evidence in the case
16. In view of these contentions, the only question which arises for determination in this Revision application is as to whether the committal proceedings before the Magistrate disclose any ground against the petitioners other than petitioners Nos. 15, 17. 25 and 35 for the trial under the Sections of the I. P. C. mentioned above. It is now well settled that if there is no evidence at all against the accused, and the Magistrate has committed the accused to be tried for the trial before the Session Court, this Court can set aside such a committal order in exercise of its power under Section 215 of the Criminal P. C., because Section 215 of the Criminal P. C. says that a commitment once made under Section 213, Criminal P. C. can be quashed by the High Court only, and only on a point of law. Chagla C. J., has stated the law thus in Krishnaji Babacharya Mahuli v. State, : AIR1953Bom33 :-
' If there is evidence, then it is for the Magistrate to weigh that evidence, and even there our Court has gone to this length that it is open to the Magistrate if the evidence is worthless not to waste the time of the Court of Session by committing the accused. It is true that the Magistrate should not play the role of the jury. It is not for him to consider whether the conviction is probable. If the conviction is possible at all on the evidence led, it is the duty of the Magistrate to commit the accused to Sessions. But the conviction must be possible and I cannot understand how any jury in the world or any Sessions Court in the world can possibly convict the accused without any evidence. Therefore, in my opinion, the fact that there is no evidence at all against the accused is a question of law on which the High Court can certainly interfere and quash the committal proceedings instituted on the basis of a charge-sheet because of the amendment which introduced Section 207-A of the Criminal P. C. by Act 26 of 1955, under Clause (6) of Section 207-A, Criminal P. C. the Magistrate shall,
'If he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly'.
If on the contrary the Magistrate is of opinion that the accused should be committed for trial he shall frame a charge under his hand, declaring with what offence the accused is charged, under subsection (7) of Section 207-A of the Criminal P. C., and after explaining the charge to the accused, call upon him to submit a list of the persons, who he wishes to be summoned to give evidence on his trial and then commit the accused to be tried by the Court of Session under Clause (10) of the said Section. This change in law was considered by the Supreme Court in Bipat Gope v. State of Bihar : AIR1962SC1195 wherein Hidayatullah, J., as he then was, observed:-
'But, whatever the meaning of the two expressions (viz. 'disclose no grounds' in Section 207-A (6) and 'not sufficient grounds in Section 209'), neither of them invests the Magistrate with the jurisdiction to decide the case, as if the Sessions Trial was before him. To this extent, Mr. Sarjoo Prasad fairly concedes, Section 207-A (6) cannot be carried. Put in other words, the section can only mean that if there is a prima facie case triable by the Court of Session, the Magistrate must commit the accused to the Court of Session to stand his trial'.
The scope of the committal proceedings was also considered by the Supreme Court in Khushiram v. Hashim, AIR 1959 SC 542, wherein Gajendragadkar J., (as the then was) observed:
'The distinction must always be drawn between absence of legal evidence and absence of reliable evidence. If it could be said with justification that there was no legal evidence at all in support of the prosecution case, it may lead to the inference that the commitment was bad in that it was not based on any legal evidence at all. But on the other hand where circumstances are relied upon to show that the evidence may perhaps not be believed, they do not lead to the inference that there is no legal evidence on the record'.
17. In view of this principle the real question to be decided in the case is as to whether there was legal evidence before the Magistrate, which could justify the committal order. In other words, relying also on the test laid down in the later case in Bipat Gope : AIR1962SC1195 I have to find out whether the prosecution has made out a prima facie case against he petitioners other than petitioners Nos. 15, 17, 25 and 35 under any of the sections of the Indian Penal Code on the basis of the evidence produced by them before the Magistrate.
18. As stated above, Mr. Kanade has conceded fairly and rightly that no particular overt act of throwing stones, brick-bats or soda water bottles on the procession or at the Ganpati Idols or otherwise is ascribed to petitioners other than petitioners 15, 17, 25 and 35 by any of the witnesses, whose statements have been recorded by the police. Mr. Peerbhoy has prepared an analysis of all those statements and papers and prepared a chart, which is filed before me, and has contended that there is not a title of evidence against any of the petitioners, other than petitioners Nos. 15, 17, 25 and 35, to show that they were active participants in the rioting in question. I have also considered the compilation of papers produced by Mr. Kanade and find that there is no direct evidence at all against any of the petitioners other than petitioners Nos. 15, 17, 25 and 35 which implicates them individually or collectively in the commission of any illegal act or commission in the course of the said rioting. So far as the circumstances mentioned by Mr. Kanade are concerned, in my judgment, none of them jointly or severally can be considered as legal evidence against any of the said petitioners being merely innocent passive spectators, who happened to be present at the scene of the offence when the rioting took place. The fact that stone, brick-bats and soda water bottles were thrown from the houses is not disputed. The fact that some of them were from different locality is also an innocent circumstance, because there was no restriction on persons belonging to other localities to visit the locality in question. Mr. Kanade is not right when he says that the evidence shoed that no ladies were present in any of the houses from which the persons were arrested. The only evidence on the record before the Magistrate shows that the wife and children of witness No. 145 had gone in the morning to his brother-in-law and witnesses 43, 44 and 45 say that some Muslim women and children had left their houses in the morning. There is nothing on a record to show that they had left because they were aware of any conspiracy to commit a rioting. It may be that they left because they were afraid that some untoward incident might happen when the Ganpati procession would be passing through the street, or they might have left for their private reason. The Judicial magistrate has relied from the houses for drawing an inference that they must be aware of the conspiracy. In my opinion, the learned Judicial Magistrate was not justified, in the first place, in assuming that those ladies had left because there was a conspiracy and they were aware of the conspiracy. Mr. Kanade was unable to point out anything on the record which would justify nay such inference or the finding of the any such inference or the finding of the Magistrate that no ladies were present. No panchnama was made of the houses. Dy. S. P. Pawar had merely asked some Sub Inspectors to go and arrest some persons from the houses and the Sub Inspectors went and brought the petitioners and the other accused, who were found in those houses. There is nothing, even in the statements of the Police Officers, to show that there were no other persons or ladies in these houses or that they combed every one from those houses. Hence, in my judgment the Judicial Magistrate was not right in concluding that merely because of the allegation that the ladies were not found in the houses, there must have been a conspiracy. Similarly, the circumstance that the panchnama shows a large number of stones and brick-bats or the circumstance that a large number of persons were injured in the procession and one of them was actually killed is not a circumstance which can be considered against the accused, unless there is something more to connect the accused petitioners with those stones, brick-bats, soda water bottles and injuries. It is true that perhaps the members of the procession including the police constables were unable to identify took place after 8-0 P. M. but that is not a circumstance which would justify the conclusion that there is a prima facie evidence against the petitioners merely because they were present in the houses. Moreover, the fact that in spite of the darkness certain persons had been identified, including petitioners Nos. 15, 17, 25 and 35 shows that at least some of the members of the procession were in a position to identify the assailants. Mr. Kanade has urged that Special Force had been brought from outside to maintain peace and as a members of this force were strangers to Sholapur they were not in a position to identify the petitioners but when the arrest took place immediately after rioting, the police could have held an identification parade to see if any of these constables from outside could recognize any of the petitioners. Now one of the contentions raised in the petition is that the police statements and the panchnama recorded on October 1, 1967, mentioned only houses Nos. 480, 481, 457, 560 and 561 as the houses from which the stones were thrown. it was only after October 1, 1967 that further supplementary statements were recorded showing that stones were thrown from houses Nos. 457-A, 457-B, 562, 559, 455, 611, 612 and 615. I do not wish to express any opinion on the merits of this argument on behalf of the petitioners because that would be appreciating evidence, which is not permissible at this stage. However, one thing is clear that the police had tried to collect all possible evidence of identification of the participants in the rioting and they could find nothing so far as the petitioners other than petitioners Nos. 15, 17, 25 and 35 were concerned.
19. From the papers before the Magistrate and the evidence of the witnesses examined before the Magistrate it is evidence that the only basis on which the petitioners other than petitioners Nos. 15, 17, 25 and 35 were arrested was their presence in the houses from which stones were thrown except petitioners Nos. 1, 15, 30, 33 and 51, who were arrested on the street, No other allegation is made by any of the witnesses examined by the police or before the Magistrate against any of the petitioners other than petitioners Nos. 15, 17, 25 and 35. Although petitioners Nos. 1, 15, 30, 33 and 51 were arrested on the street no particular overt act is attributed to them which amount's to an active participation in the riot. Similarly the fact that some of the accused-petitioners had taken leave from the respective offices on the particular day cannot be considered as a circumstance against any of the said or other petitioners. Thus, in my opinion, they only basis that is found for arresting the petitioners, other than petitioners Nos. 15, 17, 25 and 35, is that they were found present in the houses from which the stones, the brick-bats and soda water bottles were thrown on the procession.
20. The question is whether this is sufficient to make out a prima facie case against any of the petitioners, other than petitioners Nos. 15, 17, 25 and 35. For this purpose Mr. Kanade particularly relied on the charges under Sections 147, 148, 149, 151, 152, 120-B, 109 and 114, Indian Penal Code. It will be convenient to discuss first as to whether a case is made out against the petitioners, other than petitioners Nos. 15, 17, 25 and 35, under Sections 147, 148, 149, I. P. C. It is now settled that none of these sections will apply to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly. So far as the present petitioners mentioned above (other than petitioners Nos. 15, 17, 25 and 35) there is no evidence at all before the ?Court to show that they had a common object with the other persons who are alleged to have committed the rioting. None of the above eight circumstance against them for holding that there must have been a common cause made between them and the other accused. In Baladin v. State of Uttar Pradesh : 1956CriLJ345 , Sinha, J., (as he then was) has stated the law as follows:-
'It would thus appear that the place of occurrence is surrounded on all sides by the houses of the appellants. If members of the family of the appellants and other residents of the village assembled, all such persons could not be condemned 'ipso facto' as being members of that unlawful assembly. It was necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the appellants before us had done or been committing some overt act in prosecution of the common object of the unlawful assembly.
The evidence as recorded is in general terms to the effect that all these persons and many more wee the miscreants and were armed with deadly weapons, like guns, spears, pharsas, axes, lathis, etc. This kind of omnibus evidence naturally has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication'.
His Lordship has also stated that:-
'It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under S. 142, I. P. C. '
21. It may be stated here that even Section 142 of the I. P. C. requires 'a person concerned being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly or continues in it'. In the present case, it is evidence that before the Jail Road Ganpati Idol came near the Punjab Talim Masjid there was tension between the occupants of the houses and the persons in the procession and persons in the procession were mostly Hindus and there was perhaps an exchange of objectionable slogans. It was only after the Jail Road Ganpati procession came on the scene that suddenly some of the people, who were in the houses started throwing stones, brick-bats an soda water bottles on the procession. It is also evident that the area was immediately cordoned by the police and if the innocent people wanted to go way from the said houses they were not in a position to do so as they were apprehensive of the police particularly because the miscreants were attacking the police. Hence it cannot be said that there was any intention on the part of any of the petitioners to continue in the houses when stones, brick-bats and soda water bottles were thrown on the procession.
22. In Masalti v. State of Uttar Pradesh. : 8SCR133 , the Court had to consider once again the liability of the persons who were merely passive persons in an assembly of persons some of whom started rioting and Gajendragadkar C. J., observed with reference to the earlier decision in Baladin's case : 1956CriLJ345 as follows:-
'In that case, it was observed by Sinha, J., who spoke for the court that it is well settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142, I. P. C. The argument is that the evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act, and so, the High Court was in error in holding that the appellants were members of an unlawful assembly. The observation on which Mr. Sawhney relies, prima facie, does seem to support his contention: but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. in appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case. It appears that in the case of Baladin : 1956CriLJ345 the Members of the family of the appellants and the other residents of the village had assembled together some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined v by S. 141, I. P. C. Section 142 provides that however, being aware of facts which rendered any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by an entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case 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 by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin : 1956CriLJ345 assumes significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly'.
23. Now, it is evident from the record, that so far as the petitioners other than petitioners Nos. 15, 17, 25, 35 were concerned. there is nothing to show that they were not merely passive (and perhaps idle and curious) spectators. To my mind the material on the record clearly attracts the application of the principles laid down in Baladin's case : 1956CriLJ345 and there is no prima facie case made against any of the petitioners other than petitioners Nos. 15, 17, 25 and 35 under Sections 147, 148 and 149, I. P. C.
24. Next I will consider whether there is any evidence to show that there is a prima facie case against the said petitioners other than petitioners Nos. 15, 17, 25 and 35 under Sections 151 and 152 of I. P. C. Now, both these sections are not applicable to the said petitioners because in the first place, as stated above, it cannot be said that they knowingly joined or continued in any assembly in the rioting after the Dy. S. P. Pawar ordered them to get out of the houses. A tense situation prevailed when the police threatened to fire. Thereafter firing took place for a few minutes. Hence it cannot be said that they voluntarily continued to be in the houses or knowingly joined or more persons likely to cause a disturbance of the said petitioners could be charged under Sections 295, 323, 325, 332, 302, I. P. C. independently of Sections 149, 120-B, 109 and 114, I. P. C. There is no evidence whatsoever that any of the petitioners Nos. 15, 17, 25 and 35 conspired with the assailants and there is not a title of evidence on the record to show that the had any common object from which we could assume that they abetted the assailants. In the circumstances, I am of the opinion that there is no evidence whatsoever against the petitioners, other than petitioners Nos. 15, 17, 25 and 35 and hence the order of the Magistrate committing them to be tried for the offences under the aforesaid sections is contrary to law.
25. Before parting with the case, I wish to make two observations. First nothing that I have found or observed here should be prejudicial either to any of the accused, who will be tried before the Sessions. Court, or to the prosecution. Whatever findings I have recorded here are entirely for the purpose of considering whether the committal order was justified in respect of the petitioners, other than petitioners Nos. 15, 17, 25 and 35. Secondly, nothing that I have said here should be construed as in any manner reflecting on the action of the police in arresting the petitioners. Section 128 of the Criminal P. C. gives powers to the police to arrest persons 'who from part of an unlawful assembly' in order to disperse such assembly or that they may be punished according to law'. In my opinion, the police were fully justified in arresting all the petitioners in connection with the riot with a view to disperse the rioters and to maintain peace and order in the locality for the prevention of further crimes. However, the duty of the police does not end there. It is only after they collect sufficient evidence against the persons arrested in accordance with law. It may be that the police considered the evidence as sufficient to put up the charge-sheet against the petitioners but that can never be sufficient for the Judicial Magistrate to commit the accused to trial, unless the Magistrate is satisfied there is sufficient ground for committing the accused for trial. If on the contrary as in the present case of the petitioners, other than petitioners, other than petitioners Nos, 15, 17, 25 and 35, the evidence before the Magistrate discloses no ground for committal, it is the duty of the Magistrate to discharge them under S. 207-A Clause (6) of the Cr. P. C. after recording reasons for discharging. In my judgment, in the present case the learned Magistrate had failed to apply his mind to the case of the said petitioners in this context.
26. In the result the order of committal of the petitioners other than petitioners Nos. 15, 17, 25 and 35, is set aside. Petitioners Nos. 15, 17, 25 and 35 shall be tried along with the other accused in pursuance of the order of committal passed by the Judicial Magistrate. Stay granted by this Court is vacated, Rules made absolute in so far as petitioners other than petitioners Nos. 15, 17, 25 and 35 are concerned. Rules discharged in so far as petitioners Nos 15, 17, 25 and 35 are concerned.
27. Bail bonds of the succeeding petitioners cancelled.
28. Order accordingly