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27. It is also pertinent to mention here that in the committal orders, the Metropolitan Magistrate observed that, in his opinion, prima facie, offences punishable under Sections 147, 148, 149, 436 IPC were made out and since the same (assumably reference being made to the offence of Section 436 read with Section 149 IPC) were triable exclusively by the court of Sessions, the cases were committed to the Sessions in compliance with the requirement of Section 209 Cr. PC. The committal orders conspicuously lack clarity as to why there was no case found made out for any graver offence particularly on the accusations that a large number of persons had died in the violence committed by the rioters who were members of the unlawful assembly that had also statedly committed the offences under Section 436 read with Section 149 IPC by damaging a large number of houses by fire.

Lastly on the same date, time and place, you alongwith unknown persons were the members of the aforesaid unlawful assembly within the prosecution of common object to commit mischief and in consequences to achieve that object you burnt the houses of Sikhs situated in block no.32 and 33, Trilok Puri, and thus, you thereby committed an offence punishable under Section 436 read with Section 149 IPC and within my cognizance".

36. The formal charges which were framed clearly show that from the evidence that was presented by the prosecution through the charge- sheets, the trial Judge was satisfied that aside from the offence of disobedience to the order (of curfew) prohibiting unlawful assembly that had been duly promulgated by the Commissioner of Police, it constituting offence under Section 188 IPC, a case was also made out for framing of charge for the aggravated form of rioting (armed with deadly weapons) under Section 148 IPC. Further, the trial Judge was also satisfied that on the basis of available material, a case had been made out for invocation of the rule of vicarious liability under Section 149 IPC vis-a-vis the offence of mischief by fire or explosive substances to destroy the houses, shops or places of worship, punishable under Section 436 IPC. Though the statements of various witnesses under Section 161 Cr. PC which have been referred to earlier did indicate specific role being attributed by a number of witnesses or victims to specific individual accused persons, at the stage of charge it was a legitimate recourse to Section 149 IPC for putting the accused persons on trial for the offence under Section 436 IPC.

112. The trial Judge, while framing charge, had taken care to invoke the penal clause of Section 149 IPC with the offence under Section 436 IPC. It does appear that in the final determination, while convicting the appellants also under Section 436 IPC, reference to Section 149 IPC came to be omitted. This appears to be an inadvertent lapse. It cannot, however, detract from the tone and tenor of the judgment of the trial court that the conviction of these appellants for offence under Section 436 IPC has been recorded with the aid and assistance of Section 149 IPC.