3. It is quite clear that, in deciding whether action shall be taken by him under sub-s. (2) or sub-s. (3) of s. 251A the Magistrate has to form an opinion whether there is any ground for presuming that an accused has committed an offence triable under Chapter XXI or there is no such ground. When his opinion is that there is ground for a presumption that the accused has committed an offence punishable under Chapter XXI Which the Magistrate is competent to try and which could be adequately punished by him he shall proceed with the trial. But when he forms the opinion that there is no ground for presuming that an offence punishable under Chapter XXI has been committed by the accused his duty is to discharge the accused. The real question is, when an order of discharge is made by the Magistrate in exercise of the powers under sub-s. (2) of s. 251A is the discharge in respect of all the offences which the facts mentioned in the police report would make out ? The answer must be in the negative. When the Magistrate makes an order under s. 251A(2) he does so as, after having considered whether the charge made in the police report of the offences triable under Chapter XXI is groundless he is of opinion that the charge in respect of such offence is groundless; but the order of discharge has reference only/to such offences mentioned in the charge-sheet as are triable under Chapter XXI. It very often happens that the facts mentioned in the charge-sheet constitute one or more offences triable under Chapter XXI as warrant cases and also one or more other offences triable under Chapter XX. The order of discharge being only in respect of the offences triable under Chapter XXI does not affect in any way the position that charges of offences triable under Chapter XX also are contained in the police report.

4. But, says the learned counsel for the appellant, the Magistrate cannot proceed- with the’ trial of these other offences triable under Chapter XX because no cognizance has been taken of such other offences. He contends that only after a fresh complaint has been made in respect of these offences triable under Chapter XX that the Magistrate can take cognizance and then proceed to try them after following the procedure prescribed by law, This argument ignores the fact that when a Magistrate takes cognizance of offences under s. 190(1)(b) Cr. P.C., he takes cognizance of all offences constituted by the facts reported by the police officer and not only of some of such offences. For example, if the facts mentioned in the police report constitute an offence under s. 379 I.P.C. as also one under s. 426 I.P.C. the Magistrate can take cognizance not only of the offence, under s. 379 but also of the offence under s. 426. In the present case the police report stated facts which constituted an offence under s. 332 I.P.C. but these facts necessarily constitute also a minor offence under s. 323 I.P.C. The Magistrate when he took cognizance under s. 190(1)(b) Cr. P.C. of the offence under s. 332 I.P.C. cannot but have taken cognizance also of the minor offence under s. 323 I.P.C. Consequently, even after the order of discharge was made in respect of the offence under s. 332 I.P.C. the minor offence under s. 323 of which he had also taken cognizance remained for trial as there was no indication to the contrary. That being an offence triable under Chapter XX Cr. C.P. the Magistrate rightly followed the procedure under Chapter XX.

24. Section 149 relates to constructive criminal liability. It has its foundation on constructive liability which is sine-quo-non for its operation. The emphasis is on the common object and not on common intention where common object of an unlawful assembly is not proved the accused cannot be convicted with the help of Section 149. It is settled principle of law that Section 149 of IPC makes every member of an unlawful assembly at the time of committing the offence guilty of the offences. The Section creates vicarious liability for the unlawful acts committed pursuant to the common object by any other member of the assembly. Thus once the Court holds that certain accused formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that 19 of 27 cri.app-1265-2011.doc object, every member of that unlawful assembly is to be held guilty of that offence. There is distinction between common object and common intention……..

25. Section 149 reads as follows:

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

26. On reading the aforesaid provision it is crystal clear that every member of unlawful assembly is guilty of offence committed in prosecution of common object. Unlawful assembly has been defined under Section 141 of IPC. As per the said provision, an assembly of five or more persons is designated an “unlawful assembly” if the common object of the persons composing that assembly is to commit the acts enumerated under the said penal provision.