Charges under section 109 IPC cannot stand without proof of instigation or foundational offence: Raj HC

Jaipur/Jodhpur: While admitting a revision petition for further consideration, the Rajasthan High Court has observed that charges framed with the aid of Section 109 of the Indian Penal Code cannot be sustained in the absence of material establishing instigation, abetment or a foundational offence. The Court further recorded that where the prosecution itself alleges delivery of a provocative speech, but no charge under Section 153 IPC or criminal conspiracy has been framed, the continuation of other substantive charges with the aid of Section 109 IPC becomes prima facie questionable.

The bench of Justice Baljinder Singh Sandhu recorded that Section 109 IPC mandates proof of instigation and that in the absence of any material demonstrating such instigation, the framing of charges invoking Section 109 IPC cannot be mechanically sustained. The Court noted that at the stage of consideration of a criminal revision against framing of charges, the court is required to examine whether the material on record discloses a prima facie case warranting trial.

These observations were made while admitting a criminal revision petition filed by Mahaveer Singh Sarwadi, aged about 85 years, challenging the order dated August 8, 2025 passed by the Additional District Judge No. 5, Jodhpur Metropolitan, whereby charges were framed against him under Sections 109, 147 read with 109, 148 read with 109, 307 read with 109, 325 read with 109, 326 read with 109, 354 read with 109, 332 read with 109, 353 read with 109, 435 read with 109, 283 read with 109, 342 read with 109, 397 read with 109 IPC and Sections 3 and 5 of the Public Property (Prevention of Destruction) Act.

The petitioner’s advocate Hemant Nahta contended that the principal allegation against him was that he had delivered a provocative speech which allegedly led to rioting by the crowd. It was submitted that upon perusal of the entire charge-sheet and the material collected during investigation, there was no evidence whatsoever to establish that the petitioner delivered any such speech. It was further submitted that there was neither any transcript of any speech allegedly delivered by the petitioner nor did the transcript placed on record by the CBI contain his name.

The Court recorded that document D-42, relied upon by the prosecution, referred to the names of about ten persons, but did not name the petitioner. The document named Mahaveer Singh Chhapri and Mahaveer Singh Jilawat, who were not proceeded against, while the petitioner was charged. It was further contended that although the order framing charges alleged delivery of a provocative speech, no charge under Section 153 IPC had been framed, and in the absence of the said foundational offence, the remaining charges could not have been sustained.

The prosecution opposed the revision petition but was unable to point out any material on record to demonstrate that the petitioner delivered any provocative speech or to refer to any transcript containing his name. Reliance was placed by the prosecution on an order passed by a Coordinate Bench dismissing the criminal revision of a co-accused; however, the petitioner distinguished the said order on facts and submitted that the specific legal issues raised in the present petition were not considered therein.

After considering the submissions and the law laid down by the Supreme Court in Saju vs State of Kerala, Ranganayaki vs State, Prahlad Sharma vs State of Rajasthan and State of Orissa vs Debendra Nath Padhi, the High Court recorded that although the charges alleged delivery of a provocative speech, the transcripts available on record did not disclose the petitioner’s name, and no other material was shown to establish such allegation. The Court also noted that no charge alleging criminal conspiracy had been framed against the petitioner and that no charge under Section 153 IPC had been invoked.

The Court prima facie found substance in the petitioner’s contention that in the absence of a charge under Section 153 IPC and in the absence of material proving instigation, the charges framed with the aid of Section 109 IPC could not be sustained. The Court also noted that the material on record named other individuals but not the petitioner.

Being prima facie satisfied that the matter required consideration, the High Court admitted the revision petition and ordered that the effect and operation of the order dated August 8, 2025, as well as the order dated October 9, 2025 framing charges against the petitioner, shall remain stayed. The matter has been directed to be listed for final hearing after eight weeks.

Case Title
Mahaveer Singh Sarwadi vs State of Rajasthan & Others

Case Number
S.B. Criminal Revision Petition No. 1415/2025

Court
High Court of Judicature for Rajasthan, Jodhpur

Bench
Justice Baljinder Singh Sandhu

Date of Order
February 3, 2026

Advocates
For the petitioner: Mr. Hemant Nahta, Mr. Sanjay Bishnoi
For the respondents: Mr. S.S. Ladrecha for CBI; Mr. Vikram Singh Rajpurohit, Public Prosecutor