IPC – Unlawful assembly – Part – 10

The chapter VIII of IPC deals with offences against the public tranquility and covers four principal offences, namely – unlawful assembly, rioting, promoting enmity between different classes, and affray. It is not possible to deal all four in a session, therefore, divides them into two sessions and this session is limited to unlawful assembly.

INTRODUCTION

Unlawful assembly is nothing but an assembly of five or more persons assembled for illegal common objects. The concept of this offence has been changed after introduction of the Constitution as it grants freedom of association and units under Article 19(1)(c) with some restrictions.

Now a day as we show number of Hartal (strike), Bandhs (closed), fasts and demonstrations against the public policy, public decision, government inaction or over action and against the existing law or in support of victims of crime. Whether such assembly is assembly under section 141 of IPC? It is to be noted that to bring an assembly under the label of ‘unlawful assembly’, the object of the assembly must be common and illegal as mentioned in section 141.

OVERVIEW

Section 141, IPC states the definition of an unlawful assembly. Sections 142 and 143 lay down that being a member of an unlawful assembly is punishable and the punishment therefor. Section 144 is the aggravated form of unlawful assembly and section 145 declare act joining or continuing in unlawful assembly knowing as it has been commanded to disperse. Section 149 made every member of an unlawful assembly guilty of offence committed in pursuance of common object.

Section 150 punish the act of a person if he hiring or convincing at hiring to join an unlawful assembly. Section 151 talks about an act of a person knowingly joining or continuing in assembly of five or more persons after it has been commanded to disperse.

Section 154 made a person, who is owner or occupier of land, liable for assisting unlawful assembly, where as section 157 made an act of harbouring person hired for an unlawful assembly and section 158 for the person being hiring for unlawful assembly.

(1) UNLAWFUL ASSEMBLY  

An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is —

(i)      To overawe by criminal force, or show of criminal force, the Central or any State Government of Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

(ii)     To resist the execution of any law, or of any legal process; or

(iii)   To commit any mischief or criminal trespass, or other offence; or

(iv)    By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

(v)     By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

(1.1) ESSENTIAL INGREDIENTS OF UNLAWFUL ASSEMBLY

To constitute unlawful assembly under section 141, following elements is necessary –

(1)     Assembly must of five or more persons.

(2)     They should be assembled for common object.

(3)     Common object is limited to five unlawful objects mentioned in section 141.

(1.2) UNLAWFUL OBJECTS  

There are five unlawful objects, namely –

(a)     to overawe by criminal force or show of criminal force –

(i)      the Central Government or the State Government;

(ii)     the Parliament and State Assembly;

(iii)    any public servant in the exercise of the lawful power of such public servant; or,

(b)     to resist the execution of the or legal process; or

(c)     to commit mischief, criminal trespass or any other offence; or

(d)     by using or showing of criminal force –

(i)      to take or obtain possession of any property, or

(ii)     to deprive any person of any incorporeal right, or

(iii)    to enforcement any right or supposed right; or

(e)     by using or showing of criminal force, to compel any person –

(i)      to do what he is not legally bound to do.

(ii)     to omit what he is legally entitled to do.

(1.3) BEING MEMBER OF UNLAWFUL ASSEMBLY

According to sections 142 and 143 of IPC, whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it is said to be a member of an unlawful assembly. A member of an unlawful assembly is punishable with imprisonment up to six month, or with fine, or with both. The offence is cognizable- Bailable and Triable by any Magistrate.

To bring charge at home under section 143, mere by passer or a member who stands just to see what is happing is not sufficient but he should have knowledge of unlawful object of the assembly and intentionally joint it or after knowing the fact he continue as a member of assembly.

(1.4) SERIOUS NATURE OF UNLAWFUL ASSEMBLY 

In fact, violence of use of force is not element of unlawful assembly. It is a mere assembly of five of more people for common object. The use of violence of force converts into rioting. So, here we are not going to discuss abut rioting but only form of unlawful assembly when it is serious in nature. There are two serious natures of unlawful assemblies, namely – (i) Joining unlawful assembly armed with deadly weapon, or (ii) Joining or continuing in unlawful assembly, knowing it has been commanded to disperse.

(a) Joining unlawful assembly armed with deadly weapon :

According to section 144 of IPC, whoever, being armed with any deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment up to two years, or with fine, or with both. The offence is Cognizable- Bailable-Triable by any Magistrate.

(b) Joining or continuing in unlawful assembly, knowing it has been commanded to disperse :

According to section 145 of IPC, whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment up to two years, or with fine, or with both. The offence is Cognizable- Bailable-Triable by any Magistrate.

(2) CONSTRICTIVE LIABILITY OF A MEMBER OF UNLAWFUL ASSEMBLY 

Section 149 of the Code is unique and fixes liability of every member of an unlawful assembly even he has not actively played any role in the commission of an offence. It says that every member of unlawful assembly is guilty of offence committed in prosecution of common object.

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 or 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.

The Madhya Pradesh High Court held that a person cannot be charged for two kind of similar offences. It must be remembered that the accused cannot be punished twice for the same acts. The conviction of the accused only for the offences Under Sections 147 and 325/149 is upheld and that for offence Under Section 307/149 together with the sentence for that offence is set aside.[1]

 (2.1) BASIC ELEMENTS OF SECTION 149

(i)      For applicability of the section 149, the person should be member of unlawful assembly.

(ii)     The Accused was member of unlawful assembly, or he was knowledge member of the assembly or was member of it continuing on the order of dispersal.

(iii)    The offence must be committed in persuasion of the common object of the unlawful assembly, or

(iv)    The members of that assembly must know to be likely to be committed in persuasion of the common object.

(v)     There should be five or more members of the unlawful assembly.

It is well settled that once a membership of an unlawful assembly is established, it is no incumbent in the prosecution to establish whether any specific overt act has been assigned to any accused. Every member of  an unlawful assembly is vicariously liable for the acts done by others either in the  prosecution  of the common object of the unlawful assembly or such which  the  members of the unlawful assembly knew were likely to be committed. Mere membership of the unlawful assembly is sufficient under section 149.[2]

Conviction by taking recourse to section 149 cannot be made out unless any one of the five specified objects mentioned in section 141 is not proved.[3]

The Supreme Court had different views and held that mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141.[4]

Section 149 has two parts. First part deals with the commission of an offence by a member of an unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly.[5]

(2.2) OFFENCE UNDER SECTION 149, CREATES A SPECIFIC OFFENCE

The Supreme Court held that section 149 of IPC, creates a specific offence. Since this section imposes a constructive penal liability, it must be strictly construed. It is not the intention of the legislature in enacting section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly, it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in. prosecution of the common object they would be liable for the same under section 149 IPC.[6]

The court further held that what is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a 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.

(2.3) COMMON OBJECT AND COMMON INTENTION

There is a substantial difference between these two sections with which we would deal in the later part of this judgment. When several persons, numbering five or more, do an act or intend to do it, both Sections 34 and 149 IPC may apply. Section 149 IPC is of wider scope than Section 34 IPC and in a case where Section 149 applies, a constructive liability arises in respect of those persons who do not actually commit the offence.

(i)     Section 34 does not by itself create any specific offence, whereas Section 149 does so;

(ii)    Some active participation, especially in crime involving physical violence, is necessary under Section 34, but Section 149 does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in preparation and commission of the crime;

(iii)   Section 34 speaks of common intention, but Section 149 contemplates common object which is undoubtedly wider in its scope and amplitude than intention; and

(iv)   Section 34 does not fix a minimum number of persons who must share the common intention, whereas Section 149 requires that there must be at least five persons who must have the same common object.

(v)    Common intention under Section 34 requires prior meeting of minds or pre-arranged plan, i.e. all the accused persons must meet together before the actual attack participated by all takes place. Under Section 149, prior meeting of minds is not necessary. Mere membership of an unlawful assembly at the time of commission of the offence is sufficient.

(3) DEFERENT FORMS OF ABETTING UNLAWFUL ASSEMBLY 

(3.1) HIRING, OR CONNIVING AT HIRING, OF PERSONS TO JOIN UNLAWFUL ASSEMBLY

According to section 150 of IPC, whoever hires or engages, or employs, or promotes, or connives at the hiring, engagement or employment of any person to join or become a member or any unlawful assembly, shall be punishable as a member of such unlawful assembly, and for any offence which may be committed by any such person as a member of such unlawful assembly in pursuance of such hiring, engagement or employment, in the same manner as if he had been a member of such unlawful assembly, or himself had committed such offence.

(3.2) KNOWINGLY JOINING OR CONTINUING IN ASSEMBLY AFTER IT HAS BEEN COMMANDED TO DISPERSE

According to section 151 of IPC, whoever knowingly joins or continues in any assembly of five or more persons likely to cause a disturbance of the public peace, after such assembly has been lawfully commanded to disperse, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. This offence is Cognizable- Bailable-Triable by  any Magistrate.

 If the assembly is an unlawful assembly with the meaning of section 141, the offender will be punishable under section 145.

(3.3) OWNER OR OCCUPIER OF LAND ON WHICH AN UNLAWFUL ASSEMBLY IS HELD

According to section 154 of IPC, whenever any unlawful assembly or riot takes place, the owner or occupier of the land upon which such unlawful assembly is held, or 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 or unlawful assembly. This offence is Non-Cognizable-Bailable-Triable by any Magistrate.

(3.4) HARBOURING PERSONS HIRED FOR AN UNLAWFUL ASSEMBLY

Section 157 of IPC says that whoever harbours, receives or assembles, in any house or premises in his occupation or charge, or under his control any persons, knowing that such persons have been hired, engaged or employed, or are about to be hired, engaged or employed, to join or become members of an unlawful assembly, shall be punished with imprisonment up to six months, or with fine, or with both. The offence is Non-Cognizable-Bailable-Triable by any Magistrate.

(4) PROCEDURE TO DISPERSE ASSEMBLY

Sections 129 to 132 of the Code of Criminal Procedure, 1973 deal with dispersal of assembly by using of civil force or in certain cases armed forces but power is given to certain officers only. Section 132 is lifeline for the person used civil force or ordered for using armed force to disperse the assembly.

(4.1) DISPERSAL OF ASSEMBLY BY USE OF CIVIL FORCE 

Section 129 of CrPC says that any Executive Magistrate or officer in charge of a police station or, in the absence of such officer in charge, any police officer, not below the rank of a sub-inspector, may, command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse and it shall thereupon be the duty, of the members of such assembly to disperse accordingly.

If, upon being so commanded, any such assembly in does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer, may proceed to disperse such assembly by force, and may require the assistance of any make person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and if necessary an. arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law.

(4.2) USE OF ARMED FORCES TO DISPERSE ASSEMBLY  

Section 130 of CrPC empowered to use of armed forces to disperse assembly. If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces. 

Such Magistrate may require any officer in command of any group of persons belonging, to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such person forming part of it as the Magistrate may, direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.

Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

(4.3) POWER OF CERTAIN ARMED FORCE OFFICERS TO DISPERSE ASSEMBLY

According to section 131 of CrPC, when the public security is manifestly endangered by any such assembly and no Executive Mag­istrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any persons forming part of it, in order to disperse such assembly or that they may be punished according to law, but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward  obey the Magistrate as to whether he shall or shall not continue such action.

(4.4) PROTECTION AGAINST PROSECUTION FOR ACTS DONE IN DISPERSING ASSEMBLY

According to section 132(1) of CrPC, no prosecution against any person for any act purporting to be done to disperse unlawful assembly shall be instituted in any Criminal Court except – (a) With the sanction of the Central Government where such person is an officer or member of the armed forces; (b) With the sanction of the State Government in another case.

Section 132(2) of CrPC says that the authority in the following conditions shall be deemed to have committed an offence –

(a)     No executive Magistrate or police officer acting under any of the said sections in good faith;

(b)     No person doing any act in good faith in compliance with a requisition under section 129 or section 130;

(c)     No officer of the armed forces acting tinder section 131 in good faith;

(d)     No member of the armed forces doing any act in obedience to any order which was bound to obey.

The expression “armed forces” means the military, naval and air forces, operating as land forces and includes any other Armed Forces of the Union so operating. “Member” in relation to the armed forces, means a person in the armed forces other than an officer.

“Officer,” in relation to the armed forces, means a person commissioned, Gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer of’ the armed forces a non-commissioned officer and a non-Gazetted officer.

SUMMARY OF OFFENCES AND PUNISHMENT OF UNLAWFUL ASSEMBLY

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[1]    Moolchand v. State of Madhya Pradesh, 1955 Cri.L.J 1033.

[2]    State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).

[3]    Ramashish v. State of Bihar, 1999 (6) JT 560: 1999 (2) JCC (SC) 471.

[4]    Gangadhar Behera v. State of Orissa, 2002 8 SCC 381.

[5]    Chandra Bihari Gautam and others vs. State of Bihar, SCC 2002 (9) SCC 208.

[6]    Allauddin Mian v. State of Bihar, AIR 1989 SC 1456, 1989 SCR (2) 498.