Section 149 IPC Is One Of The Most Misused And Misinterpreted Provisions Of The Present Times: Allahabad High Court

The Allahabad High Court has recently observed that Section 149 I.P.C is one of the most misused and misinterpreted provisions of the present times so far as the investigation by the Investigating Officers of police or any other investigating agency of crime is concerned. 

The bench of Justice Siddharth observed thus while dealing with a bail plea wherein the accused was implicated, inter alia, under Section 149 of IPC, however, in its analysis of the facts of the case, the Court noted that the ingredients of the said offence were not made out against him.

The Court further observed that the investigating officers apply mostly section 149 I.P.C as it suits them.

The case in brief

Essentially, the bench was dealing with the bail plea of one Sanjeev who was implicated for allegedly causing the offence of attempt to murder (307 IPC), rioting armed with deadly weapons (148 IPC), and forming an illegal assembly for the prosecution of a common object of murder (149 IPC).

Now, when he moved the Court seeking bail in the case, the Court took note of the fact that prima facie, the accused persons had, in fact, not shared a common object of causing the murder of the deceased as the dispute (between the accused persons and the deceased) took place all of a sudden and therefore, the Court opined that no offence under section 149 was made out.

The Court also observed that in many such cases, the police were found to have implicated the accused under this provision of IPC even when the ingredients of the section were not fulfilled.

In this very case, the Bench also said that the influence of money in conducting an investigation is quite evident and it is a very big hurdle in the free and fair investigation of a crime and case. 

Read Live Law's complete report here: Influence Of Money A Big Hurdle In Free And Fair Probe; Influential People Pressurize Police Officers: Allahabad High Court

"Section 149 IPC is the most misused and misinterpreted provisions of the present times"

Underlining that Section 149 I.P.C provides for constructive liability of every person of an unlawful assembly, the Allahabad High Court observed that formation of unlawful assembly, having its common object and knowledge of the common object, are matters of fact, which are required to be proved by the prosecution beyond all reasonable doubt for securing the conviction of an accused under Section 149 I.P.C.

Further, explaining the scope of the provision, the bench, in its order, recorded the following three essentials of the provision and stressed that only when these three elements are satisfied an implication /conviction under Section 149 I.P.C may be sustained and not otherwise.

(i) there must be unlawful assembly;

(ii) commission of offence may be by any member of unlawful assembly;

(iii) such offence must have been committed in prosecution of the common object of the assembly or must be such as a member of the assembly knew to be likely to be committed.

Significantly, the Court also added that though this provision deals with the concept of constructive liability, however, the same must not be so stretched as to lead to the false implication of an innocent person.

Further, when the Court examined the facts of the instant case, it found that out of the three ingredients discussed above, the third ingredient for constituting an offence under Section 149 I.P.C was not satisfied in this case. Therefore, granting bail to the Accused, the Court made the following remark:

"The allegations clearly prove that a dispute took place all of a sudden regarding the parking of a car and from the allegations on record it does not appears that all the accused persons had a common object of causing the murder of the deceased and attempt to murder of his brother and had formed unlawful assembly knowing that such offence is likely to be committed."

Consequently, noting that in the instant case the offence under Section 149 IPC was not made out against the accused, the Court further noted that it has come across a number of cases of bail where ingredients for constituting offence under Section 149 I.P.C were clearly made but the accused was not implicated under Section 149 I.P.C.

Conversely, the Court further added that in many cases, where the allegation in the first information report and the statements of the witnesses clearly did not prove the presence of the necessary ingredients for constituting offence under Section 149 I.P.C but accused was implicated for the same. 

In view of this, the HC also added a note of caution for the courts that in such cases, unless reasonable direct and indirect circumstances lend assurance to the prosecution case that all the accused shared a common object of unlawful assembly, they should not implicate the accused.

Case title - Sanjeev @ Kallu Sethiya v. State of U.P. [CRIMINAL MISC. BAIL APPLICATION No. - 18458 of 2022]

Case Citation: 2022 LiveLaw (AB) 471 (another angle of the story could be read here)

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