Mere presence is not enough for unlawful assembly, and unauthorised investigation of a non-cognizable offence cannot sustain prosecution.

Mere presence at the scene was held insufficient to establish membership of an unlawful assembly, as the material did not show five or more persons sharing a common unlawful object; the charges for rioting and common object liability were therefore unsustainable. The allegations also failed to disclose assault with intent to outrage modesty or any real criminal intimidation, so the offences of outrage of modesty and intimidation were not made out. Simple hurt being a non-cognizable offence, police investigation could not proceed without the statutory order required for such offences; in the absence of that permission, the prosecution was unsustainable and the proceedings were quashed.

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Issues: (i) Whether the allegations and materials disclosed the existence of an unlawful assembly or rioting so as to sustain charges under Sections 147 and 149 of the Indian Penal Code, 1860; (ii) Whether the allegations disclosed the offences of outrage of modesty and criminal intimidation under Sections 354 and 506 of the Indian Penal Code, 1860; (iii) Whether the prosecution for simple hurt under Section 323 of the Indian Penal Code, 1860 was liable to be quashed for want of compliance with Section 155(2) of the Code of Criminal Procedure, 1973.

Issue (i): Whether the allegations and materials disclosed the existence of an unlawful assembly or rioting so as to sustain charges under Sections 147 and 149 of the Indian Penal Code, 1860.

Analysis: An unlawful assembly requires five or more persons, a common object, and that common object must fall within Section 141 of the Indian Penal Code, 1860. Mere presence at the scene does not establish membership of an unlawful assembly. The materials showed that the persons present at the petitioner's residence were there for a political meeting and that the security personnel were posted there for protection. The facts did not show any formation of an assembly with a common unlawful object, nor any evidence of persons combining for the purpose of using criminal force against the complainant or other media persons.

Conclusion: The charges under Sections 147 and 149 of the Indian Penal Code, 1860 were groundless and could not be sustained against the petitioner.

Issue (ii): Whether the allegations disclosed the offences of outrage of modesty and criminal intimidation under Sections 354 and 506 of the Indian Penal Code, 1860.

Analysis: For an offence under Section 354, there must be material showing assault or criminal force with intent to outrage modesty, which was absent on the statements relied upon. For Section 506, the alleged exhortation was not shown to have caused alarm, and the surrounding circumstances did not indicate any real threat within the meaning of criminal intimidation. On the material available, the essential ingredients of either offence were not made out.

Conclusion: The charges under Sections 354 and 506 of the Indian Penal Code, 1860 were not made out against the petitioner.

Issue (iii): Whether the prosecution for simple hurt under Section 323 of the Indian Penal Code, 1860 was liable to be quashed for want of compliance with Section 155(2) of the Code of Criminal Procedure, 1973.

Analysis: Section 323 of the Indian Penal Code, 1860 is a non-cognizable offence. Where the FIR disclosed only a non-cognizable offence, police investigation could not be undertaken without the order contemplated by Section 155(2) of the Code of Criminal Procedure, 1973. No such permission had been obtained, and the investigation was therefore contrary to the mandatory statutory requirement.

Conclusion: The prosecution for the offence under Section 323 of the Indian Penal Code, 1860 was unsustainable and liable to be quashed.

Final Conclusion: The criminal proceedings did not disclose a sustainable basis for continuing the prosecution, and the entire case against the petitioner was quashed.

Ratio Decidendi: Mere presence at the scene is insufficient to infer membership of an unlawful assembly, and investigation of a purely non-cognizable offence without the statutory order under Section 155(2) is illegal and cannot sustain prosecution.

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