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Unlawful assembly and common Object (IPC)

Updated: May 12


Unlawful assembly and common Object (IPC)
Unlawful assembly and common Object (IPC)

Content:-



Unlawful Assembly


Under the Indian Penal Code, the mere gathering of individuals isn't subject to punishment. However, when individuals assemble in a manner that induces fear among the public and poses a threat to public peace, it qualifies as an 'unlawful assembly.'



Therefore, merely convening to strategize future actions or engaging in a peaceful march doesn't constitute an unlawful assembly since it doesn't disrupt peace, which is essential for an assembly to be deemed unlawful.



Sec. 151 - Statutory Framework


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


  • First: to overawe a government or a public servant by show of criminal force,


  • Second: to resist the execution of any law, or of any legal process,


  • Third: to commit any mischief of criminal trespass, or other offence, 


  • Fourth’, to take forcefully possession of any property or to deprive any person of the enjoyment of right of way or of use of water, etc., or to enforce any right or supposed right,


  • Fifth’, to compel, by force, any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. 


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



The aim of this section is to deter the use of criminal force by five or more individuals to carry out specific acts outlined within the statute. Concerning the offence of unlawful assembly, several key points are worth noting:


  • The assembly must comprise five or more persons. If the assembly consists of fewer than five individuals, it cannot be considered an unlawful assembly under Sec. 141. Therefore, it cannot serve as the basis for conviction unless it is proven that besides the convicted individuals, other unidentified persons were also part of the unlawful assembly.


  • An assembly that begins as lawful does not automatically become unlawful merely because it refuses to disperse upon order. Similarly, it does not turn unlawful due to its lawful actions inciting others to engage in unlawful acts.


  • However, a lawfully convened assembly may transform into an unlawful one due to subsequent actions by its members. Yet, the illegal actions of one or two members, not endorsed by the rest, do not alter the nature of the assembly (Moti Das v State of Bihar AIR 1954 SC 657).


  • When two factions engage in a fight, their members do not automatically become part of an unlawful assembly since they lack a common objective. An offense under Sec. 141 cannot be said to occur when two opposing factions engage in a riot and fight, as there is no shared objective between them.

 
 

Common Object


Sec. 149 deviates from the usual principles of criminal law by allowing conviction and sentencing based solely on proof of membership in the unlawful assembly and sharing the common object, regardless of whether the individual actually participated in the crime. However, if a person is no longer part of the unlawful assembly, they cannot be held liable under Sec. 149.

 
 

Essentials of Section 149


Section 149 has the following essentials:-


  • Regarding the "prosecution of the common object," an offense must be committed in pursuit of the assembly's common object. This common object can be formed through express agreement after mutual consultation, but this is not always necessary. It suffices if the common object is adopted by all members and shared by them, regardless of whether it was planned beforehand or decided upon later (even a lawful assembly can turn unlawful later). 


  • The timing of forming an unlawful intent is immaterial; what matters is that all members are aware of it and agree to it.


  • A common object can be established at any stage by some or all members of the assembly, with others subsequently joining and adopting it. Once formed, the common object may be changed, modified, or abandoned at any point.



Sec. 149 establishes that if any member of an unlawful assembly commits an offence, all members of the assembly can be held liable. However, once a person ceases to be a member of the unlawful assembly, they cannot be held accountable under Sec. 149.



Regarding the "prosecution of the common object," it is crucial that an offence is committed in furtherance of the assembly's common object. This common object can be established through express agreement after mutual consultation, but this is not always required.



It suffices if the common object is adopted and shared by all members, regardless of whether it was planned beforehand or decided upon later (even a lawful assembly can turn unlawful later). The timing of forming an unlawful intent is not significant; what matters is that all members are aware of it and agree to it.



A common object can be formed at any stage by some or all members of the assembly, with others subsequently joining and adopting it. Once formed, the common object may be changed, modified, or abandoned at any point.



Determining the common object of the unlawful assembly at a particular stage of the incident is a matter of fact, considering the nature of the assembly, the weapons carried by its members, and their behaviour at or near the scene. While there may not be a common object in a spontaneous fight, it can be inferred in a planned attack on a victim.



The phrase "in prosecution of common object" should be interpreted strictly to mean "in order to attain the common object" rather than "during the prosecution of the common object" of the assembly. The offence committed must be directly linked to the common object due to the nature of that object.



There must be a clear connection between the common object and the offence committed. For example, if an unlawful assembly intends to commit theft, and then one member commits rape without the knowledge of others, the offense of rape cannot be attributed to all members.



Therefore, if the criminal act is a new and independent act originating solely from the individual's intentions, the others are not liable simply because they intended to participate in a different criminal act. This section does not apply to cases where several persons intend to commit one act, but someone or more of them commit an entirely different act.



The phrase "knew to be likely to be committed in prosecution of the common object" in Sec. 149 consists of two parts. The first part implies that the offence committed "in prosecution of a common object" must be one that is committed with the aim of achieving the common object.



Even if the offence does not fall under the first part, it may still fall under Sec. 141 if the members knew it was likely to be committed, as required in the second part of the section. Generally, when an offence is committed in prosecution of the common object, it is an offence that the members knew was likely to occur in pursuit of that object.



However, there may be cases that fall under the second part but not the first. The distinction between the two parts must be recognized and considered in each case.




Leading Case Laws


  • In Madan Singh v State of Bihar (2004) 4 SCC 622, it was ruled that mere presence in an unlawful assembly does not automatically render a person liable unless they were motivated by a common object as outlined in Sec. 141 of the IPC. Determining who inflicted specific injuries is not necessary if the accused are members of the assembly. What matters is whether the accused understood that the assembly was unlawful and likely to commit acts covered by Sec. 141. This implies that mere presence alone is insufficient to establish guilt under Sec. 149; the prosecution must demonstrate that the accused were not mere bystanders but actively shared the common object. It must be proven that the accused either did something or failed to act, thereby becoming a member of an unlawful assembly, unless the case falls under Sec. 142, which defines who can be considered a member of such an assembly. If there are lawful and unlawful explanations for a person's presence, an unlawful intention cannot be assumed.



Regarding participation in an unlawful assembly, it is not necessary to prove that every member engaged in overt acts. The absence of overt acts attributed to members does not disprove the charge under Sec. 149.



Sometimes, mere observation or inaction by an accused may indicate shared intent with others. In other words, if an accused shares a common object but merely observes others committing overt acts, they may still be liable under Sec. 149.



  • In Nagarjit Ahir v State of Bihar [2005, CrLJ 904 (SC)], the Supreme Court issued a cautionary rule. It emphasised that when there's evidence indicating a large gathering of people, it's prudent to convict only those individuals accused of committing an 'overt act' with the assistance of Sec. 149. This approach prevents innocent bystanders from being wrongly implicated. Similarly, in Mangal Singh v State of Bihar [2005, CrLJ 3755 (SC)], the court ruled on a case where the accused party fired at the deceased party following a verbal exchange. Two members of the accused party were unarmed and did not engage in any overt acts. Since they did not share the common object of the assembly and played no part in the incident, they were not convicted.



  • In Mizaji v State of U.P. (AIR 1959 SC 572), the Supreme Court clarified Sec. 149, distinguishing between the two parts: the offence committed in prosecution of the common object and the offence likely to be committed. The case involved a dispute over a field, where five accused armed themselves and engaged in an altercation, resulting in one of them fatally shooting a member of the opposing party. The court deliberated on whether the murder was connected to the common object of the assembly or was likely to be committed. It was argued that the common object was forcible possession of the field and murder was not intended. However, the court disagreed, noting the armed nature of the assembly and their threatening behaviour. The court held the appellants formed an unlawful assembly, with the murder being immediately connected to their common object. Even though the murder was not the primary objective, the members were aware of the likelihood due to their conduct and weapons. Mizaji's use of a pistol, at his father's behest, demonstrated his shared intent with the assembly. Thus, he was found guilty despite the familial influence.



  • MAINA SINGH v STATE OF RAJASTHAN  (AIR 1976 SC 1084)  - If the prosecution asserts that an unlawful assembly involves only five named individuals and no others, and if two or more accused are acquitted, leaving fewer than five persons before the court, Sec. 149 cannot be invoked. In a case where Maina Singh fired at Amar Singh during an altercation, resulting in the latter's death, while other accused delivered blows, the issue arose whether Maina Singh alone could be convicted under Sec. 302 read with Sec. 149. The trial and High Court acquitted four co-accused due to inconsistencies in witness statements. Despite this, since the Sessions Judge suggested the possibility of others participating in the crime, the High Court upheld Maina Singh's conviction.

 
 
  • A similar point arose in Mohan Singh v State of Punjab (AIR 1963 SC 174).In Mohan Singh v State of Punjab (AIR 1963 SC 174), two out of five accused were acquitted while two were convicted under Sec. 302 read with Sec. 149. The charge and evidence were limited to the named accused. It was noted that if the charge and evidence focus solely on the named individuals, and if two or more are acquitted, Sec. 149 cannot be invoked. However, if evidence suggests the presence of additional unidentified individuals forming the unlawful assembly, the charge under Sec. 149 remains valid despite the acquittal of some named accused. This is because the court may conclude that the unlawful assembly consisted of more than five persons, including those not identified or named.



  • In Krishna Govind Patil v State of Maharashtra (AIR 1963 SC 1413) and Dharam Pal v State of UP (1975) 2 SCC 596, the Supreme Court emphasised that Sec. 149 cannot be invoked if the charge and evidence focus solely on named accused, and if two or more are acquitted, leaving less than five persons before the court. However, if evidence suggests the presence of additional unidentified individuals forming the unlawful assembly, Sec. 149 can be invoked. The court must differentiate cases where more than five persons are proved to be present, even if some are unidentified, from cases where doubt exists regarding the presence of additional persons. In a case where only five named persons were involved without evidence of others, Sec. 149 or Sec. 34 cannot be applied if some are acquitted, and the remaining accused would be responsible for their personal offence.



CHANDRA BIHARl GAUTAM v STATE OF BiHAR (AIR 2002 SC 1836): In a case where a large group armed with guns and deadly weapons attacked a house, resulting in deaths, the Supreme Court clarified that Sec. 149 doesn't require prior agreement on a common object. It observed that even if the specific object wasn't proven, the existence of a common object can develop after assembly. Sec. 149 imposes liability on members for offences committed in furtherance of this common object, regardless of individual actions. In such cases, the knowledge of potential consequences of the collective action is sufficient to invoke Sec. 149, holding all members accountable for any resulting offences.



Distinction Between Sec. 34 And Sec. 149


While Sec. 34 and Sec. 149 of the Indian Penal Code bear some resemblance and deal with constructive criminality, they have distinct meanings and applications. Nanak Chand v State of Punjab (AIR 1955 SC 274) clarified their differences. Here's a concise breakdown:


  • Sec. 34 is a rule of evidence explaining joint criminal liability, while Sec. 149 creates a specific substantive offence.


  • Sec. 34 requires a minimum of two persons, while Sec. 149 necessitates at least five persons with a common object.


  • Sec. 34 focuses on "common intention," whereas Sec. 149 pertains to "common object," which doesn't require prior concert.


  • Common intention under Sec. 34 is broader than common object under Sec. 149, which must align with specific circumstances listed in Sec. 141.


  • Sec. 34 concerns intention only, while Sec. 149 encompasses knowledge as well, distinguishing between direct and likely outcomes.


  • Sec. 34 mandates some form of active participation, while Sec. 149 holds members of an unlawful assembly liable solely based on membership and knowledge.


  • Sec. 34 was amended in 1870, adding "in furtherance of the common intention of all," but Sec. 149 remains unchanged.


While a common object may develop on the spot, common intention usually doesn't, unless clearly evidenced.Both Sec. 34 and Sec. 149 may apply when several persons perform an act and intend to do it, but substituting Sec. 34 for Sec. 149 could prejudice the accused. Non-applicability of Sec. 149 doesn't prevent conviction under Sec. 302 with Sec. 34 if common intention is proven.

 
 

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