It is perfectly legitimate to punish the accused persons only under this section even though they could not be convicted for the offence they allegedly committed in prosecution of the common object of the unlawful assembly because these charges could not be substantiated against them by evidence. In Ratnesh v. State, the charge of rioting against the accused persons was proved but the evidence was doubtful as to whether they had committed mischief also in prosecution of the common object of the unlawful assembly of which they were members.
They were convicted only under section 147 while their conviction under section 426 of the Code was set aside. In cases of free fights between two groups of people it may not be possible to unequivocally say as to which party was the aggressor, and consequently, sections 147, 148 and 149 of the Code should have no application in such situation.
In Vijay Singji Mankotia v. State of Himachal Pradesh, there was an allegation that about 200 to 250 persons of a particular political party had gathered together under the chairmanship of the petitioner. They obstructed the vehicular traffic by sitting on ‘dharna’ and were raising slogans against the State Government because of price hike.
The Himachal Pradesh High Court observed that such acts cannot be said to be lawful exercise of rights of the processionists but amount to public nuisance, rioting and causing illegal restraint to others who are stopped from passing through public highway. Prima facie findings were recorded by the courts that there were reasons to proceed against petitioners. The Himachal Pradesh High Court declined to quash the proceedings.
The offence under this section is cognizable, bailable and non-compoundable, and is triable by any magistrate.