149 in such cases it is necessary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. As we perceive, Explanation II to Section 2(e) takes care of a situation where the building is constructed and there are different owners who have paid the purchase price for their respective apartments. In Narsingh Das Tapadia vs. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where S.

Right up to 9- 15 or so in the night, she was sufficiently strong and healthy to go about her affairs, and indeed, she must have boarded the train also in a fit state of health, because there is nothing to show that she was carried to the compartment in a state of collapse or unconsciousness. Goverdhan Das Partani , 1951 SCR 312, while considering what the phrase ˜taking cognizance mean, approved the decision of Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal vs.

It is a benevolent and beneficial provision which has not been enacted to curtail and nullify what is logical and apparent to reason. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.

In such a case, the fact that less than five persons are before the Court does not make section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the court and others number more than five in all and as Such, they together constitute an unlawful assembly. It does not include portable shelter or sheds including a latrine which is not attached to the main structure.

In dealing with the question as to the applicability of S. It may be that less than five persons may be charged and convicted under S. As noted earlier, building has been defined in Section 2(e) of the Act to mean a house, out-house, garage or any other structure, or part thereof. Learned counsel for the appellant-State has submitted that as there has been no contribution of funds at the time of construction.

The construction can be masonry, bricks, wood, metal or other material. 149 can be successfully brought home to any members of the unlawful assembly. It is, however, not necessary that five or more persons must be convicted before a charge under S. However, we refrain from doing so as, in our opinion, it was not open to the High Court to take up these questions under writ jurisdiction and to declare the properties as unencumbered.

Her general health, though not exactly good, had not deteriorated so radically as to prevent her from attending to her normal avocations. Having dealt with the concept of plinth area and its applicability in the backdrop of the provision, we are required to scan the definition of building. The Explanation should not be read as a negative provision, detrimental and fatal to cases where there are separate owners of the apartments, for that is not the basic object and purpose behind the Explanation II to Section 2(e) of the Act.

The said Explanation lays the stipulation that when a building consists of different apartments or flats owned by different persons and cost of the building has to be met by all such persons, each apartment or flat is deemed to be a separate building. On a dissection of the said provision, it appears that said Explanation would apply when there is a building; that the building must consist of different flats or apartments; that each apartment or flat must be owned by different persons and cost of construction of the building must have been met jointly, and in such cases plinth area cannot be clubbed.

437, wherein it was observed that: She appeared to have been quite busy prior to her departure arranging for this matter and that, and she did not rely upon other persons' help but personally attended to all that she desired. 302/149 if the charge is that the persons before the Court, along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded.

The Explanation II to Section 2(e) would not be applicable and the respondent has to be treated as the sole owner. Abani Kumar Banerjee, AIR 1950 Cal. We could have decided the aforesaid question finally. Mere presentation of the complaint and receipt of the same in the court does not mean that the Magistrate has taken cognizance of the offence. Explanation II is the fulcrum that would determine the question that has emanated for consideration in this case. It was for the parties to agitate the questions before the DRT where the recovery proceedings are pending at the instance of HUDCO with whom the property had been mortgaged by the Trust.