Unlawful Assembly: Section 144 IPC

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Issue in Najabhai

In this matter, the ground of appeal was whether the High Court was right in acquitting the accused under Section 302 read with 149 IPC is the question that falls for our consideration in this case.

A. Relevant Provisions of Law

Section 149. 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—

(First) — To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legis­lature of any State], or any public servant in the exercise of the lawful power of such public servant; or(Second) — To resist the execution of any law, or of any legal process; or

(Second) — To resist the execution of any law, or of any legal process; or(Third) — To commit any mischief or criminal trespass, or other

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

(Fourth) — 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(Fifth) — 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. Explanation.—An assembly which was not unlawful when it assem­bled, may subsequently become an unlawful assembly.

(Fifth) — 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. Explanation.—An assembly which was not unlawful when it assem­bled, may subsequently become an unlawful assembly.

The essential ingredients and the width and amplitude of Section 149, as well as its applicability to the facts of the case, have to be examined as under:

149. Every member of unlawful assembly 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 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.
B. High Court Judgment referred on Lawful Assembly

Calcutta High Court

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A Full Bench of the Calcutta High Court analysed Section 149 IPC in the year 1873 in Queen v. Sabid Ali  ((1873) 20 W.R. 5 Cr. | (1873) 11 Beng. L.R. 347 (FB)). Phear, J., speaking for the majority, held as under: “

It seems to me clearly not the case that every offence which may be committed by one member of an unlawful assembly while the assembly is existing, i.e., while the members are engaged in the prosecution of a common object, is attributed by Section 149 to every other member. The Section describes the offence which is to be so attributed, under two alternative forms, viz., it must be either –

1st. – An offense committed by a member of the unlawful assembly in prosecution of the common object of that assembly.

2nd. – An offense such as the members of that assembly knew to be likely to be committed in prosecution of that object.

  • Now, inasmuch as the continuance of the unlawful assembly is by the definition of Section 141 made conterminous with the prosecution of the common object, it seems tolerably clear that the Legislature must have employed the words “prosecution of the common object” with some difference of meaning in these two passages respectively.
  • Also, the mere fact that the Legislature thought fit to express the second alternative appears to show very distinctly that it did not intend the words “in prosecution” which are found in the first to be equivalent “during the prosecution”; for if they were then the second alternative would have clearly been unnecessary.
  • And a comparison with this passage of the language which is used in Section 460, where the Legislature makes all the persons concerned in committing a burglary punishable with transportation for life, if any one of their number act the time of committing of burglary causes death, &c., strongly bears out this view.

I am of opinion that an offence, in order to fall within the first of the above alternatives, i.e., in order to be committed in the prosecution of the common object must be immediately connected with that common object by virtue of the nature of the object: for instance, if a body of armed men go out to fight, their common

Also, the mere fact that the Legislature thought fit to express the second alternative appears to show very distinctly that it did not intend the words “in prosecution” which are found in the first to be equivalent “during the prosecution”; for if they were then the second alternative would have clearly been unnecessary. And a comparison with this passage of the language which is used in Section 460, where the Legislature makes all the persons concerned in committing a burglary punishable with transportation for life, if any one of their number act the time of committing of burglary causes death, &c., strongly bears out this view.

I am of opinion that an offence, in order to fall within the first of the above alternatives, i.e., in order to be committed in the prosecution of the common object must be immediately connected with that common object by virtue of the nature of the object: for instance, if a body of armed men go out to fight, their common object is to cause bodily injury to their opponents, and in that case death resulting from injury caused would be homicide committed in prosecution of the common object.

And an offence will fall within the second alternative if the members of the assembly, for any reason, knew beforehand that it was likely to be committed in the prosecution of the common object, though not knit thereto by nature of the object itself. It seems thus, on a little consideration, to be apparent that the two alternatives of Section 149 do not cover all possible cases of an offence being committed by one member of an unlawful assembly during the time when the common object of the assembly is being prosecuted. It follows that in every trial of prisoners on a charge framed under the provisions of Section 149 of Penal Code, even when it is proved that the specified offence was committed by one of the members of the assembly during, so to speak, the pendency of that assembly it yet remains an issue of fact to be determined on the evidence whether that offence was committed in prosecution of the common object, as I have endeavoured to explain the meaning of those words in the first part of the Section; and, if not, whether it was an offence such as the members of the assembly knew to be likely to be committed in the prosecution of the object.”

The High Court held that the conviction under Section 149 was unsustainable in the said case. In a concurring opinion, Jackson J. held as follows:

“It appears to me that the construction of this Section (149), that is, a construction which shall be at once reasonable grammatical, involves two difficulties, or at least two points which call for attentive consideration:-

1st – “The common object,”

2nd – or “such as the members of that assembly knew to be likely to be committed in prosecution of that object.”

It has been proposed to interpret the “common object” in a precise sense so as to indicate the exact extent of violence to which the rioters intended to go, viz., to take possession of the land by force extending, if need be, to wounding and the like. This I think is not the sense in which the words were intended to be understood. They are not, it seems to me, used in the same sense as “the common intention” in Section 34, which means the intention of all whatever it may have been. The words here seem to have a manifest reference to the defining Section 141, and to point to one of the five objects, which is common to five or more persons assembled together, make their assembly unlawful. For this reason, I think that any attempt to mitigate the rigour of the Section by limiting the construction of the words “common object” must fail, and that any offence done by a member of an unlawful assembly in prosecution of the particular one or more of the five objects mentioned in Section 141, which is or are brought home to the unlawful assembly to which the prisoner belonged, is an offence within the meaning of the first part of the Section.”

Pontifex, J. agreed with the majority and interpreted the word “knew” in Section 149 in the following terms:

“To bring the offence of murder as defined by the Code within Section 149, I think it must either necessarily flow from the prosecution of the common object; or it must so probably flow from the prosecution of the common object that each member might antecedently expect it to happen. The offence of murder as strictly defined by the Code requires a previous intention or knowledge in the perpetrator, and to “know” that murder is likely to be committed, is to know that some member of the assembly has such previous intention or knowledge. The word “knew” used in the second branch of the Section is I think advisedly used, and cannot be made to bear the sense of “might have known.” 

C. Supreme Court Judgments referred on Unlawful Assembly

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This Court in Mizaji and Another v. State of U.P (1959 (1) SCR 940 at p. 946-949). observing that various High Courts of India had interpreted Section 149 held that every case has to be decided on its own facts. This court proceeded to deal with Section 149 in detail as under:

“The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a pre-concert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression ‘know’ does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all. There is a great deal to be said for the opinion of Couch, C.J., in Sabid Ali case [ (1873) 20 WR 5 Cr] that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part.”

“The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a pre-concert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression ‘know’ does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely too committed if the circumstances as to the weapons carried and

Mizaji’s case was referred to and relied upon in a long line of decisions of this court.  e.g., Avtar Singh v. the State of Haryana (2012) 9 SCC 432 at  (27 and 28.), Roy Fernandes v. the State of Goa (2012) 3 SCC 221 at ( 31 and 32.), Lokeman Shah v. State of W.B. (2001) 5 SCC 235 at  20 and 21.

Applying the well-settled principles laid down by this court we proceed to examine whether the Accused can be convicted of an offense under section 302 with the aid of Section 149 IPC. As per Section 141 IPC, an assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is to commit an offense mentioned therein. Guidance is supplied by this Court regarding the requirement of examining the circumstances in which the incident occurred, the weapons used and the conduct of the accused during the course of the incident.

In Lalaji v State of Uttar Pradesh [(1989) 1 SCC 437 at  8] this court held that: “The common object of the assembly must be one of the five objects mentioned in Section 141 IPC. The common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.”

Verdict in 2017  Najabhai Case

“It is no more res Integra that a finding of the commission of the offense under Section 326 (Voluntarily Causing Grievous Hurt by Dangerous Weapons or means) read with Section 149 can be recorded against members of an unlawful assembly even if it is established that the offense under Section 302 was committed by one member of such assembly. (Shambhu Nath Singh and Ors v. State of BiharAIR 1960 SC 725 | 1960 Cri LJ 144 at  6 and 7) The High Court found that the conviction of the accused under section 302 read with 149 IPC cannot be upheld as there was neither an unlawful assembly nor a common object to cause death. The High Court miserably failed to consider the facts and circumstances of the case before coming to such conclusion. Section 149 IPC does not become inapplicable in all situations where there is a cross-case by the accused. The High Court ought to have taken note of the acquittal of the Appellant and others in the said cross case on 24.06.2003. The judgment of the High Court was delivered on 29.07.2009 by which date there was no cross case pending against the Appellants. Recording a finding of acquittal without reappreciation of evidence by the Appellate Court would result in a flagrant miscarriage of justice and that is exactly what happened in this case.”

Published :
June 22, 2017
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