Member of an Unlawful Assembly

Section 142 of IPC reads – “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.”[2] The essential ingredient of section 142 is that as soon as the person is aware of the fact
that the assembly is unlawful, it is to be proved that he remained as the part of such assembly despite
to knowing the fact that it is unlawful. The word ‘continues’ under section 142 signifies physical
presence as a member of an unlawful assembly, that is, to be physically present in the crowd.[3] This
section cannot be attributed to a person who knows that the assembly is unlawful and is present as a
just bystander. In the case of Apren Joseph, it was held that the test is whether the person knows the
common object of the assembly and continues to keep its company due to his own free will.

Section 143 of the IPC embodies the punishment for being a member of an unlawful assembly. A
person who is a part of an unlawful assembly shall be punishable with an imprisonment which may
extend to 6 months, or with fine, or with both.

Section 144 of IPC can be said to be an extended version section 143. Section 144 aims to punish the
persons armed with a weapon of offence in an unlawful assembly. It prescribes the punishment with
imprisonment for a term which may extend to 2 years, or with fine, or with both. The intention of this
section is to reduce the risk of hampering the public tranquillity.

Section 145 of IPC prescribes punishment for knowingly joining an unlawful assembly which has
been commanded to disperse. This section is in par with section 151 and 148 of IPC. Section 151
talks about the cases of special nature where disobedience will lead to a breach of public peace,
further, section 188 deals with cases where there is a violation of any legal order commanded by any
public servant. Section 129 of Code of Criminal Procedure provides for special powers to a police
officer to command dispersal of an unlawful assembly.

Section 150 makes liable to persons who were hired for joining the unlawful assembly. It provides
that if a person is hired for being a member of an unlawful assembly he shall be liable in the same
manner as if he was the member of such assembly and he himself had committed the offence. Section
157 of the IPC is a wider section which provides punishment for harbouring the hired persons. All
such person who harbours knowingly that the persons are hired to be the part of an unlawful
assembly shall be liable with imprisonment which may extend to 6 months, or with fine, or with
both.

Dispersal of Unlawful Assembly by use of Civil Force:

The fundamental right under article 19(1)(b) of the Constitution is subject to reasonable restriction as
imposed under article 19(3). Section 129 of Cr.P.C. aims to protect public peace. Section 129(1)
confers power to Executive Magistrate or any police officer not below the rank of sub-inspector to
command for the dispersal of any unlawful committee or any assembly of 5 or more persons which is
likely to cause a disturbance of the public peace. It shall be the duty of the members of the assembly
to disperse accordingly, as soon as it is commanded to disperse. The subsection (1) only provides
power to command not the power to use force.

Further, under section 129(2) power has been conferred on Executive Magistrate or any police officer
not below the rank of sub-inspector to disperse, the assembly commanded to disperse, by force if
such assembly does not disperse after being so commanded, or if the assembly by its conduct shows
determination not to disperse if not being so commanded. The subsection provides power to use force
and may also take the assistance of male persons to disperse the assembly. However, for the purpose
of dispersal, no member or officer of armed forces shall be allowed to assist under this section. The
power to use force also includes the power to arrest and confine a person, if necessary, for the
dispersal of the assembly.

The power given under this section is subject to following conditions:

1. The assembly must be of 5 or more persons

2. such assembly is likely to cause a breach of public peace
3. such assembly need to be dispersed
4. not to use force until and unless assembly does not disperse, despite being ordered to
disperse

Dispersal of Unlawful Assembly by Armed Forces

Section 129 of Cr.P.C. grants no power to armed forces to disperse the unlawful assembly. This
power has been given by section 130. Under section 130(1) the Executive Magistrate of the highest
rank may command to disperse the assembly by armed forces. This power by the Magistrate can be
exercised only if:

1. the assembly cannot be dispersed otherwise, and

2. if it is utmost necessary in the public security that such assembly is required to disperse.

Section 130(2) provides that the Magistrate may require any officer of the armed forces to disperse
the assembly with the help of armed forces. All such officers are also conferred with power to arrest
and confine the members of the assembly in order to disperse it or punish them according to law.
Section 130(3) puts check on the power of officers of armed forces. Every officer is required to use
little force and do as little harm to the person and property which is necessary for dispersal of
assembly. In the case of State of Karnataka v. B. Padmanabha Beliya,[4] when the district armed
reserve police fired without lawful orders from the authorities on the members of an unlawful
assembly and caused the death of one of the person, it was held that the State Government is
vicariously liable and had to pay compensation to the dependants of the deceased.

Section 131 hand over special powers to commissioned or gazetted officer of the armed forces to
disperse the assembly. All such officers are authorized to command the dispersal of an assembly only
when the public security is considerably endangered by such assembly and no communication with
the Executive magistrate is practicable. According to section 132(3) ‘armed forces’ means the
military, naval and air forces and also includes any other armed forces of Union.

The section also states the situation where while executing his power it becomes practicable for the
officer to communicate with the Magistrate, then, he shall be bound to communicate and shall act as
per the instructions of the Magistrate to continue or discontinue the action.

Protection against Prosecution

Section 132 provides protection to persons to who had done any act in the persuasion of their power
under section 129, 130 and 131.As per section 132(1), no prosecution shall lie against any person,for
any act done pertaining to section 129, 130 and 131, in any Criminal Court except:
 a. with the prior permission of the Central Government where the person is an officer or
member of the armed forces;
b. with the prior permission of the State Government in any other case.

According to section 132(2) following persons shall be deemed have committed no offence:

a. an Executive Magistrate or a police officer acting in good faith under any of the said
section;
b. a person acting in good faith in compliance with a requisition under section 129 or 130;
c. the officer of the armed forces acting in good faith under section 131;
d. the member of the armed forces doing any act in conformity with the order he is bound to
obey.

This section specifically provides protection against prosecution to persons who had acted in a bona
fide manner. An act done with the absence of good faith will attract liability.