IPC – law relating to rioting – affray- Part – 11

IPC – law relating to rioting – affray- Part – 11

OVERVIEW

In last session we understood the meaning unlawful assembly. In this session we are going study law relating to rioting, affray, promoting enmity between different groups of society. Rioting is aggravated form of unlawful assembly when any member of it uses violence or force assembly converts into rioting. Affray is a fight between two or more persons which disturbs peace in public place. As far as, offence of promoting enmity is concerned, it may be committed by giving speech and publishing of any article and doing an act at religious place, etc. but essence of the offence is promoting enmity between different groups of society.

INTRODUCTION

Section 146 lays down the definition of ‘rioting’ and section 147 imposes punishment thereof. Section 148 is aggravated form of rioting, armed with deadly weapon and section 149 make liable of every member of assembly for the act of another. Section 152 talks the situation when any member of assembly assaulting or obstructing public servant when suppressing riots. Section 153 prescribed the punishment where a person wantonly giving provocation with intent cause riot. Section 154 makes a person liable who is owner or occupier of a land used for riots. Section 155 fixes the liability of person for whose benefit riot is committed. On the other hand, section 156 fixes the liability of an agent of owner or occupier for whose benefit riots was committed. Last but not the least section 158 made a person liable if he being hired to take part in riots or to go armed.

Affray is defined by section 159 and section 160 imposes sentence for committing affray.

Sections 153A and 153B deal with promoting enmity. Section 153A made a person liable for promoting enmity between different groups on the grounds of religion, race, place of births, residence, language, etc. and doing acts prejudicial to maintenance of harmony and offences committed in place of worship, etc. On the hand, section 153B talks about imputation, assertion prejudicial to national integration.

(1) OFFENCE OF RIOTING

Section 146 of IPC defines rioting which says that whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. Section 147 says that whoever is guilty of rioting, shall be punished with imprisonment up to two years/fine/both.  The offence is cognizable- Bailable-Triable by any Magistrate.

(Rioting = unlawful assembly + use of for or violence = every member is liable)

This is aggravated form of unlawful assembly. As you know that, our Constitution allows peaceful assembly by following the procedure as prescribed by law and it is fundamental right under Article 19 with some of the restrictions. But, when a group assembled without following the prescribed procedure or the assembly not following the directions as agreed or violating the law it becomes unlawful.

(1.1) ELEMENTS OF RIOTING

Following elements have to be proved to establish riot.

(i)      Five or more persons should form unlawful assembly.

(ii)     They must animated by unlawful object.

(iii)    Force or violence must be used by unlawful assembly or any member of it.

(iv)    Such force or violence must be used in prosecution of common object.

(1.2) MEANING OF FORCE

Section 349 of IPC defines the word ‘force’. According to which, a person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other’s body, or with anything which that other wearing or carrying, or with anything so situated that such contact affects that other’s sense of feeling.

The person causing the motion, or change of motion, or cessation of motion causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described –

(i)      By his own bodily power.

(ii)    By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.

(iii)   By inducing any animal to move, to change its motion, or to cease to move.

The Sub- Inspector was pursuing investigation which is his duty and therefore it could not be said that while he was pursing the investigation, it was in pursuance of an unlawful object and therefore no conviction could be passed under section 147.[1]

(1.3) AGGRAVATED FORMS OF RIOTING 

(a) RIOTING, BEING ARMED WITH DEADLY WEAPON

According to section 148 of IPC, whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment up to three years/fine/both. The offence is Cognizable- Bailable-Triable by any Magistrate of the first class.

There must be nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same was committed to accomplish the common object every member of the assembly.

(b) ASSAULTING OR OBSTRUCTING PUBLIC SERVANT WHEN SUPPRESSING RIOT

According to section 152 of IPC, whoever assaults or threatens to assault, or obstructs or attempts to obstruct, any public servant in the discharge of his duty as such public servant, in endeavouring to disperse an unlawful assembly, or to suppress a riot or affray, or uses, or threatens, or attempts to use criminal force to such public servant, shall be punishable with imprisonment up to three years/fine/both. The offence is Cognizable-Bailable-Triable by any Magistrate of the first class.

In a case, no force or violence was proved to have been used by the appellants in prosecution of the common object of the unlawful assembly of which they were members. With the exception of the firing of the shots in a direction which could not be determined, no attempt was made by any of the appellants to use any force or violence on any member of the police party. Accordingly, the conviction of the appellants under section 148 must also be set aside.[2]

(1.4) OTHER OFFENCES RELATING TO RIOTING 

(a) WANTONLY GIVING PROVOCATION WITH INTENT TO CAUSE RIOT

Section 153 says that whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending of knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall,

• if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment up to one year/fine/both; and
• if the offence of rioting be not committed, imprisonment up to six months/fine/both.

The offence is Cognizable- Bailable-Triable by any Magistrate.

(b) OWNER OR OCCUPIER OF LAND ON WHICH RIOT IS COMMITTED

According to section 154, whenever any riot takes place, the owner or occupier of the land upon which such riot is committed, and any person having or claiming an interest in such land, shall be punishable with fine not exceeding one thousand rupees, if he or his agent or manager, knowing that such offence is being or has been committed, or having reason to believe it is likely to be committed, do not give the earliest notice thereof in his or their power to the principal officer at the nearest police-station, and do not, in the case of his or their having reason to believe that it was about to be committed, use all lawful means in his or their power to prevent, it and, in the event of its taking place, do not use all lawful means in his or their power to disperse or suppress the riot. The offence is Cognizable- Bailable-Triable by any Magistrate.

(c) LIABILITY OF PERSON OR AGENT, FOR WHOSE BENEFIT RIOT IS COMMITTED

Section 155 settled the liability of the person for who benefit riot is committed. On the other hand, section 156 has fixed the liability of an agent of owner of occupier for whose benefit riot is committed. According to section 155, whenever a riot is committed for the benefit or on behalf of any person who is the owner or occupier of any land, respecting which such riot takes place or who claims any interest in such land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit there from, the agent or manager or such person shall be punishable with fine, if he or his agent of manage, having reason to believe that such riot was likely to be committed or that the unlawful assembly by which such riot was committed was likely to be held, shall not respectively use all lawful means in his or their power to prevent such assembly or riot from taking place, and for suppressing and dispersing the same. The offence is Non-Cognizable- Bailable-Triable by any Magistrate.

(d) BEING HIRED TO TAKE PART IN AN UNLAWFUL ASSEMBLY OR RIOT

Section 158 says that whoever is engaged, or hired, or offers or attempts to be hired or engaged, to do or assist in doing any of the acts specified in Section 141, shall be punished with imprisonment up to six months/fine/both, The offence is Non-Cognizable- Bailable-Triable by any Magistrate.

The second part of the section describes the situations when hire person to go armed. It says that whoever, being so engaged or hired as aforesaid, goes armed, or engages or offers to go armed, with any deadly weapon or with anything which used as a weapon of offence is likely to cause death, shall be punished with imprisonment up to two years/fine/both. The offence is Non-Cognizable- Bailable-Triable by any Magistrate.

(1.5) DISTINCTION BETWEEN UNLAWFUL ASSEMBLY AND RIOT 

Both of offences being brothers have many similarities but still following distinctions can be made between the both.

(1)     Unlawful assembly is pre-requisite of the offence of riot.

(2)     Use of force or violence is not necessary in unlawful assembly; whereas it is necessary in case of rioting.

(3)     The offence of being a member of unlawful assembly is less serious than being member of rioting.

(2) OFFENCE OF AFFRAY

Section 159 defines affray and section 160 declares punishment for committing affray. When two or more persons, by fighting in a public place, disturb the public peace, they are said to “commit an affray”. Whoever commits an affray, shall be punished with imprisonment up to one month, or with fine up to Rs. 100, or with both. The offence is cognizable-Bailable-Triable by any Magistrate.

The offence of affray postulates the commission of a definite assault and a breach of the peace. Mere quarrelling or abusing in a street without exchange of blows is not sufficient to attract the application of section 160. There were two parties and one party assaulted the other. Since the other party submitted to the assault without resistance, it was held that offence of affray was not committed.

Mere exchanging abuses in a public place would not amount to an affray because something more than a mere wordy quarrel is needed before a person is convicted for offence under section 160 IPC. In another case, the two parties were nowhere together. They were not even exchanging hot words what to talk of exchanging blows. Therefore, they cannot be said to be fighting in a public place, which is the essential ingredient of the offence of affray as defined under section 159 IPC and made punishable under section 160 IPC.[3]

(2.1) DISTINCTION BETWEEN AFFRAY AND RIOT 

(1) Number of members.- To commit an offence of riot there should be five or more persons whereas in case of affray two or more persons are sufficient to bring charge at home.

(2) Seriousness.- The offence of rioting is aggravated form of unlawful assembly, whereas the offence of affray is of least degree. Affray is not serious nature of offence and merely disturbs the peace in public. On the other hand, nature of riot is serious where unlawful assembly or any member of unlawful assembly has used the force or violence to fulfill their objects.

(3) Place.- Affray can take place only at public place, whereas, it is not necessary in the case of rioting. The offence of rioting is not limited to public place; it may commit in private place too.

(4) Intention or object.- Affray is intended to fulfill a common object between the accused persons and there is no need of pre-planned. On the other hand, the object of assembly is unlawful and planned among the members of assembly. The force or violence is used to fulfill the object of unlawful assembly.

(5) Punishment.- Affray is punishable only imprisonment up to one month or fine up to Rs. 100 or with both. On the other hand, guilty of rioting, shall be punished with imprisonment up to two years, or with fine, or with both.

(3) PROMOTING ENMITY BETWEEN DIFFERENT GROUPS

Sections 153A and 153B deal with situations when a speech of a person promotes enmity between different groups. India is a secular country had people of different religions and further divided into sects or castes or beliefs and faiths. These sections were inserted and substituted after independence and in tune with protection of secularism and integrity of the nation.

Offence under Section 153A was substituted in IPC, by Section 2 of Act (35 of 1969). This section lists all the offensive acts, just like a divisible factor throughout India, promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. The offence under this section is divided into two categories according to severeness of the offence – Offence in general and offence at worship place.

(3.1) PROMOTING ENMITY (OTHER THAN IN PLACE OF WORSHIP)

Section 153A(1) imposes a duty on all the people to maintain peace in the society, by not criticizing or commenting on another group of persons, by which they get annoyed. Whoever commits this offence shall be punished with imprisonment up to three years, or with fine, or with both. Offences under this category are as –

(a)     Whoever by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place or birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b)     Whoever commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, or

(c)     Whoever organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community.

(a) CONSTITUTIONAL VALIDITY OF SECTION 153A

The object of adding this section in the Code in 1969 was to prevent racial and sectarian quarrels entailing the public peace. Liberty to criticise religion does not necessary mean, licence to use abusive language. This section is not confined to the promotion of feelings of enmity, etc., on the grounds of religion only, but takes in promotion of such feelings on other grounds as well such as race, place of birth, residence, language, caste or community.

The provisions of Section 153A are not ultravires but, are intra-vires and therefore not violating Article 19(1)(a). The court held that restrictions imposed on freedom of speech and expression by Section 153A of IPC is reasonable within the meaning of Article 19(2) of the Constitution of India. The right guaranteed by Article 19(1)(a) is subject to restriction imposed by Article 19(2), so, if any piece of legislation is made in the interest of public order or in relation to incidents to an offence, it would be valid.^[4]

Where the accused had published a book, which was banned and all the copies were confiscated by the Government, it contained objectionable material as per Ss.153A, and 295A. It was held that such notification as issued by Government for factum of books was not violative of Article 19(1)(a) and (g) of the Constitution.

This section cannot be used even if an article causes or tends to cause hatred or enmity between different political classes like the capitalists and labourer class or between persons believing in different forms of Government.^[5] An article published in newspaper asking masses to boycott election and organise revolutionary class struggles is not capable and such view was held to be political view on political situation so it was no offence under section 153A.

(b) PROMOTING HATRED OR ILL WILL DISHARMONY AFFECTING THE ENMITY

It is not necessary to prove a result of the objectionable matter, enmity or hatred was in fact caused between the different classes. Intention to promote enmity or hatred apart from the writing itself, is not a necessary ingredient of the offence. It is enough to show that the language of the writing is of a nature calculated to promote feelings of enmity or hatred. For a person must be presumed to intend the natural consequence of the act. For the matter to come within the mischief of this section it must be read as a whole. There should be mens rea on the part of the accused to commit the offence of promoting disharmony amongst different religions. In other words, publication of the words or representation is not offence under section 153A but need mens rea to bring in ambit of section 153A.

Where an article published in a newspaper read that militant minorities thrive on communalism. The author referred to the Muslims generally as a ‘basically violent race’. The article also contained various aspersian on the Muslims community. In another article, the Mughal Emperors were described as lustful perverts, rapists and murderers and the author criticised the naming of the Delhi roads after the name of the Mughal Emperors. The Supreme Court held that both the articles promoted feelings of enmity, hatred and ill will between the Hindu and Muslim communities on ground of the communalism and this could not be done in the guise of political thesis or historical truth. Therefore, the conviction under section 153A was proper.^[6]

(3.2) PROMOTING ENMITY IN PLACE OF WORSHIP, ETC. 

It is aggravated form of offence mentioned in sub-section (1).  It says that whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.

The offence under section 153B is Cognizable-Non-bailable-Triable by any Magistrate of the first class.

(3.3) IMPUTATIONS, ASSERTIONS PREJUDICIAL TO NATIONAL-INTEGRATION

The offence was inserted in IPC in 1972 by Amendment Act (31 of 1972). Section 153B of the IPC states that whoever, by words either spoken or written or by signs or by visible representations or otherwise, –

(a)     Makes or publishes any imputation that any class of persons cannot, by reason or their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to Constitution of India as by law established or uphold the sovereignty and integrity of India, or

(b)     Asserts, counsels, advises, propagates or publishes that any class or persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or

(c)     Makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste of community, and such assertion, counsel, pleas or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons,

– shall be punished with imprisonment up to three years, or with fine, or with both.

Whoever commits any such offence, in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment up to five years and shall be liable to fine.

The Marathi newspaper ‘Samha’ immediately  after the demolition of ‘Babri Masjid’ and outbreak of violence published an editorial in high flown language, which were directed not against the Muslim community as a whole but against the anti-national elements in them, the attitude of the police, Army and Government. It was held that editorials did not fall within the mischief of Section 153A or Section 153B.^[7]

The offence under section 153B is Cognizable-Non-bailable-Triable by any Magistrate of the first class.

SUMMARY OF RELEVANT OFFENCES

* * * * *

[1]     Maiku v. State of Uttar Pradesh, (1989) Cr LJ 860 : AIR 1989 SC 67.

[2]     Hazara Singh v. State of Punjab, (1971) 1 SCC 529.

[3]    Kuldip Kumar v. State of Punjab, Crl. Misc. No.M-27872 of 2011 (P&H HC on 21/05/2012).

[4]    S.K. Vijihwaddin v. State of U.P., AIR 1963 All 1335; and also see Khan Gujran Zahida v. State of UP, 1964 All L.J. 545: Gopal Vinayak v. Union of India, AIR 1971 Bom 56,

[5]    Shiv Kumar v. State of U.P., 1978 Cr.L.J. 701 (All),

[6]    Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763.

[7]    Joseph Bain D’Souza v. State of Maharashtra, 1995 Cr.L.J. 1316 (Bom)