Arun Kumar Research on Unlawful assembly

Relevant provisions:

Article 19(1)(b)[1] of the Indian Constitution confers onto the citizens the right to assemble.
However, there is always a possibility that an assembly might turn unruly, causing damage
not only to property but also to life. Such an unruly assembly is termed as “unlawful
assembly.”

Grounds

Section 141 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-

1. To overawe by using criminal force or show criminal force, to Central or any State
Government or Parliament or any State Legislature or any public servant; or
2. To oppose the performance of any law or legal process; or
3. To carry out any mischief or criminal trespass or any other offence; or
4. By use of criminal force takes possession of any property or deprives any person of
the right to the way or the use of water or any incorporeal right; or
5. With the use or show of criminal force compels any person to do any illegal act.

(for a unlawful assembly an common object is an essential element, if persons

not having common object then it is not known as an assembly.)

Section 142: Whoever, being aware of facts which render any assembly an unlawful
assembly, intentionally joins that assembly, or continues it, is said to be a member of an
unlawful assembly.

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.

(an intention to join an unlawful assembly is an essential ingredient to being a

member of an unlawful assembly.)
Section 144: 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 of either description for a term which may extend to two
years, or with fine, or with both.

Section 145 of IPC prescribes punishment for knowingly joining an unlawful assembly which
has been commanded to disperse

Section 146 Rioting: 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 148:- Rioting, armed with deadly weapon:

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 of either
description for a term which may extend to three years, or with fine, or with both.

Section 149 IPC creates a specific and distinct offence. Its two essential ingredients are :

(i) commission of an offence by any member of an unlawful assembly and;

(ii) such offence must have been committed in prosecution of the common object of that
assembly or must be such as the members of that assembly knew it be likely to be committed.

Section 149 creates a specific and distinct offence. It imposes constructive or vicarious
criminal liability of the members of the unlawful assembly for the wrongful acts committed
under the common object by any other member of the assembly. If an offence is committed
by any member of such unlawful assembly in the pursuance of the shared object, all the
members shall be liable for that offence.

The first condition to be fulfilled in designating an assembly an “unlawful assembly” is that

such assembly must be of five or more persons, who should meet for a common object. It is
not necessary that the identity of all of them should be established.
There must be more than four persons having the common object. Where there was no
satisfactory evidence that the fifth person shared the common object of beating the deceased
with lathis; there can be no unlawful assembly with the remaining four persons.

Amar Singh v. State of Punjab

initially seven persons were charged for offences under Sections 148 and 149, two of them
were acquitted by the Sessions Court and one by High Court, and no other person apart from
these seven was stated to have been involved in the crime, it was held that the conviction of
the remaining four cannot be sustained. In other words on the acquittal of three accused
persons, the remaining four accused cannot be convicted under Section 148 or Section 149.

Lallan v. State of Bihar

the Court decided that the requirement of law is having the common object being present at
the place of occurrence. The accused sharing the common intention should be personally
present at the scene of occurrence.

The second necessary ingredient is that the object of the assembly must be common to the
persons composing the assembly, that is to say, they must be aware of it and concur in it.
Some present and immediate purpose should be there to carry into effect the common
object.

The common object required by Section 141 is different from the common intention
required by Section 34 in this respect. Mere presence of a person along with members of an
unlawful assembly is not sufficient to support a finding that he had the common object of the
unlawful assembly. There must be other evidence direct or circumstantial to justify a finding
that he had the common object.

To attract the provisions of Section 141, the only ingredient necessary is that the object should
be common to the persons who composed the assembly; that is to say, they should all be
aware of it and concur in it.
It is not possible to prove what was in the mind of the persons assembled. That can only be
inferred from the conduct of the assembly. The common object of the unlawful assembly can
be collected from the nature of the assembly, arms used by them and the behaviour of the
assembly at or before the scene of occurrence.

(In our case the weapon used was stones which were present on the road side
which was used by unidentified person in unruly/unlawful manner, none of
the stone was pelted by the member of aam aadmi party. None of the member
of aam aadmi party was carried any weapon which can show that the object
of the assembly was unlawful and their intention to give injury to any one.)

Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392,

this Court highlighted that where there are party factions, there is a tendency to include the
innocent with the guilty and it is extremely difficult for the court to guard against such a
danger. It was pointed out that the only real safeguard against the risk of condemning the
innocent with the guilty lies in insisting on acceptable evidence which in some measure
implicates such accused and satisfies the conscience of the court.

Anup Lal Yadav And Anr vs State Of Bihar on 26 September, 2014

21….once it is established that the unlawful assembly had a common object, it is not
necessary that all persons forming the unlawful assembly must be shown to have committed
some overt act, rather they can be convicted under Section 149, IPC. We, therefore, find no
error in the order of conviction and sentence passed by the Trial Court and affirmed by the
High Court calling our interference under Article 136 of the Constitution.

But in our case: The members of aap had no object of creating an unlawful assembly with
in the meaning of section 141, they also not carrying any deadly weapon within the means
of section 144, also not be a part of an unlawful assembly u/s.145.
 Shere And Ors. vs. State of U.P

".........But when there is a general allegation against a large number of persons the Court
naturally hesitates to convict all of them on such vague evidence. Therefore we have to find
some reasonable circumstance which lends assurance.

Musa Khan & Ors. vs. State of Maharashtra

"........Thus a court is not entitled to presume that any and every person who is proved to have
been present near a riotous mob at any time or to have joined or left it at any stage during its
activities is in law guilty of every act committed by it from the beginning to the end, or that
each member of such a crowd must from the beginning have anticipated and contemplated
the nature of the illegal activities in which the assembly would subsequently indulge. In other
words, it must be proved in each case that the person concerned was not only a member of
the unlawful assembly at some stage, but at all the crucial stages and shared the common
object of the assembly at all these stages................."

Maranadu And Anr. vs. State

For determination of the common object of the unlawful assembly , the conduct of each of
the members of the unlawful assembly, before and at the time of attack and thereafter, the
motive for the crime, are some of the relevant considerations. What the common object of
the unlawful assembly is at a particular stage of the incident is essentially a question of fact
to be determined, keeping in view the nature of the assembly, the arms carried by the
members, and the behaviour of the members at or near the scene of the incident. It is not
necessary under law that in all cases of unlawful assembly, with an unlawful common object,
the same must be translated into action or be successful. Under the Explanation to Section
141, an assembly which was not unlawful when it was assembled, may subsequently become
unlawful. It is not necessary that the intention or the purpose, which is necessary to render
an assembly an unlawful one comes into existence at the outset. The time of forming an
unlawful intent is not material. An assembly which, at its commencement or even for some
time thereafter, is lawful, may subsequently become unlawful. In other words it can develop
during the course of incident at the spot eo instanti."
 Baladin v. State of Uttar Pradesh

In that case, it was observed by Sinha, J., who spoke for the Court, that it is well-settled that
mere presence in an assembly does not make a person, who is present, a number of an
unlawful assembly unless it is shown that he had done something or omitted to do something
which would make him a member of an unlawful assembly, or unless the case falls under
s.142, I.P.C.

Some overt act is necessary to implicate a person for the offence committed by the unlawful
assembly.

Masalti v. State of U.P., AIR 1965 SC 202

"What has to be proved against a person who is alleged to be a member of an unlawful

assembly is that he was one of the persons constituting the assembly and he entertained
along with the other members of the assembly the common object as defined by
s.141 I.P.C. Section 142 provides that however, being aware of facts which render any
assembly an unlawful assembly, intentionally joins that assembly or continue in it, is said to
be a member of an unlawful assembly. In other words, an assembly of five or more persons
actuated by, and entertaining one or more of the common objects specified by the five clauses
of S.141, is an unlawful assembly. The crucial question to determine in such a case 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 by s.141. While determining this question, it
becomes relevant to consider whether the assembly consisted of some per-sons who were
merely passive witnesses and had joined the assembly as a matter of idle curiosity without
intending to entertain the common object of the assembly. It is in that context that the
observations made by this Court in the case of Baladin (S) AIR (1956) SC 181 assume
significance; otherwise, in law, it would not be correct to say that before a person is held to
be a member of an unlawful assembly, it must be shown that he had committed some illegal
overt act or had been guilty of some illegal omission in pursuance of the common object of
the assembly. In fact, S.149 makes it clear that 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 of 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; and that emphatically brings out the principle that the
punishment prescribed by s.149 is in a sense vicarious and does not always proceed on the
basis that the offence has been actually committed by every member of the unlawful
assembly.

Durga Dass Sohanlal And Ors. vs The State (AIR 1960 P H 271, 1960 CriLJ 646)

(42) It is not necessary that the intention or the purpose which is necessary to render an
assembly an unlawful one, need not come into existence at the outset. The time of forming
an unlawful intent is not material. An assembly which at its commencement or even for some
time thereafter is lawful, may subsequently become unlawful, or even riotous. To constitute
a riot, the original intention need not be riotous. The unlawfulness of an assembly depends
on its behaviours, purpose for which it meets, the manner in which it expresses itself, and the
means which are used by its members to consummate the common object, though the actual
consummation of its purpose is not essential and it may remain unexecuted.

P.S. Sawant v. State of Maharashtra

the Supreme Court held that before the accused could be convicted of sharing the common
object of the assembly or of being members of the same at a time when the assembly became
unlawful, it had to be proved by the prosecution that the accused were members of the
unlawful assembly at the time the assembly became unlawful and started pelting stone. If
there is no evidence of identification of accused at the stage when the morcha became
unlawful it cannot be explained away by presuming that as the morcha moved on it must be
presumed to be unlawful and any person who was a member of that assembly must be
presumed to share the common object of the unlawful assembly. This, according to the
Supreme Court, it like over-stating the law on the subject. The Supreme Court has also held
that before the Court is satisfied that an accused is a member of an unlawful assembly it must
be shown either from his active participation or otherwise that he shared the common object
of the unlawful assembly though it is not necessary that the accused should be guilty of any
overt act. But, it is sufficient if it is shown that as a participant of the unlawful assembly he
was sharing the common object of the same.

Jayendra Shantaram Dighe And ... vs The State Of Maharashtra (1992 (1)
BomCR 679, 1992 CriLJ 2796)

7. If one looks to the map as to how the procession went ahead, it can be seen that the
processionists have covered virtually the whole town of Baramati. It appears that when the
procession came at Panvatha Hanuman Mandir after crossing the river, the processionists
wanted to go through the Bagwan Lane. But, this lane being occupied predominantly by
Muslims, the Police party apprehended some trouble and out of security reasons they
stopped the morcha from proceeding through the said Bagwan lane. I have already
mentioned above that this morcha in fact had been through the Bagwan Lane peacefully. It
might be right on the part of the police to take certain precautionary steps to prevent any
disturbance, but only from this one cannot conclude that the processionists intended to go
through Bhagwan Lane to harass the Muslim community or to destroy their property. It is true
that when the procession was stopped by the police certain stones were pelted. But this
incident has taken place all of a sudden and as I have already pointed out earlier, the
procession was a long procession which went through the whole of Baramati town peacefully.
It might be that few miscreants might have gone side tracking the procession and damaged
the property of Muslims. But, for that one cannot blame the majority of the members of the
procession. Nobody contemplated that the police will stop the morcha at Bagwan lane. The
weapons used were stones lying on the street itself and, therefore, if some unidentified
persons behaved in an unruly manner one cannot loist the vicarious liability on the other
members in the procession carried out peacefully throughout.

8. There is another aspect of the matter which has to be taken into consideration. If suddenly
a few elements behaved in an unruly manner, which was not contemplated by the other
members of the procession and in view of the fact that a huge crowd of about two thousand
had assembled, it was certainly difficult for the other processionists to extricate themselves
from the procession and disperse. Therefore, merely because the accused persons were
there in the procession, they cannot be held guilty of the offences committed by the
unidentified persons. According to me the aforesaid facts which I have discussed in detail
clearly go to show that the members who took out the procession to lodge their protest
peacefully could not have anticipated or contemplated the unruly behaviour of some
miscreants. There is also no evidence on record to show that all the members in the
procession shared the common intention of pelting stones at the police party discharging its
duty.

Therefore, in the light of all this, the present appellants cannot be held guilty under Ss. 147,
148, 332 read with 149 of the Indian Penal Code, merely because they participated in the
procession.

10. The conviction and sentence passed by the trial Court by its judgment and order dated
December 12, 1983 in Sessions Case No. 75 of 1983, is, therefore, set aside.

11. Fine, if paid, be returned to respective appellants.