Less than five persons may be charged for unlawful assembly if some accused are not identified, named: Supreme Court

Less than five persons may be charged under Section 149 of the Indian Penal (IPC) for offence committed as part of unlawful assembly if the unlawful assembly had more than five persons but some of them are not identified and named [Mahendra vs State of MP]..A Bench of Justices Ajay Rastogi and Abhay S Oka observed that though it is an essential condition of an unlawful assembly that its membership must be five or more as per Section 141 of IPC, it may not be necessary that five or more persons necessarily be brought before the Court and convicted."Less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and (remain) unnamed," the Court said.However, the Court made it clear that if more than five are chargesheeted and face trial and some of them are acquitted, then the remaining cannot be convicted for the offence under Section 149 if their number is less than five. .The Bench was dealing with an appeal against a verdict of the Madhya Pradesh High Court which had upheld the order of the lower courts convicting the accused persons for offence under Section 149 IPC.The case stemmed from an attack on the complainant and his son by a group of 20 people. He had identified and named few of them and others were apprehended during investigation.All 20 had faced trial, but only three were finally convicted involving unlawful assembly. The accused had argued that since five or more are required to prove an offence of unlawful assembly, the acquittal of 17 persons with only three convicted failed to satisfy that essential ingredient. .The Supreme Court accepted the argument, holding that 20 accused were specifically named by the complainant and after the investigation, chargesheet was filed against all the 20 accused persons and they faced trial.Out of that 17 were acquitted, the Court noted.It further observed that it was not the case of the prosecution that there were other unnamed or unidentified persons other than the one who were chargesheeted and faced trial."When the other co-accused persons faced trial and have been given benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other persons along with the appellant in causing injuries to the victim," the judgment said. In the facts and circumstances, it was as such not permissible to invoke Section 149 IPC, the Court concluded.It, therefore, allowed the appeal and set aside the judgment of the High Court..[Read Judgment]