Unlawful Assembly- Karan Teotia

Introduction

Article 19 (1) guarantees to all citizen, right to freedom of speech and expression according to which the citizens have right to express themselves. Which also inculcates article 19 1 B, which means that the citizens also have right to assemble peacefully without arms. These Fundamental Right is subject to restriction, stated under Article 19 (2) these rights are not absolute and thus are subject to certain restrictions. In wake to maintain peace, tranquility, Harmony and Public order. Section 141 of the Indian Penal Code, ensures it by way drawing a line between Unlawful and lawful assembly.[1]

Section 141 defines Unlawful, which in itself is not a crime but when read with other section like 142 and 143 gives a wider amplitude. Section 141 merely tells that what Unlawful assembly is and Section 142 talks about what If a person continues to be a part of the same or intentionally joins it then it can be called as a member of Unlawful assembly. Section 143 further states about the punishment for being a member of an Unlawful assembly, which may extend to six months. Or with fine or with both. But the culpability increases as long as Unlawful assembly is with higher intensity which means that the unlawful assembly armed with weapon or continuing the unlawful assembly knowing it has been commanded to be dispersed in such cases the minimum set of punishment is of 2 years at least or with fine or with both. Unlawful Assembly may commit Riot, when they use force, in furtherance of groups common Object, in such case every such member should be held liable.

Section 141 read with section 149 is one of the most common section used in deciding several cases.

Section 149 states

Every member of unlawful assembly guilty of offence commit­ted in prosecution of common object—

o If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly,

o 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,

o is a member of the same assembly,

o is guilty of that offence.[2]

Essentials to Prove Unlawful Assembly

o There must be at least 5 or more members

o They all must have a common Object

o There act must fall within 5 conditions as stated under section 141

Important case laws Essentials Wise

Ø There must be 5 or more members- It is to be shown that there are 5 members, but there are instances where, even if it is proved that the number of assailants were 5, 141 remains inapplicable

Dharampal Singh Vs State of Uttar Pradesh[3] - In the above stated case it has been held by the Honorable Court that when the alleged convicts are acquitted and the number of persons convicted falls below 5 then in such circumstances section 141, 149 both becomes inapplicable. As the very essential for an assembly to be unlawful is that the number of convicts must be 5 which is defeated. And hence the assembly is not Unlawful.

Dalip Singh vs State of Punjab[4]- It was held by the honorable court in the above stated question that it is important to be proven that then number of people were 5 in the Unlawful assembly, it is irrespective of the fact whether how many were produced before the court. It must be established that there were at least 5 or more members, the other not being identified, or the exact figure not being specific, is no ground for others produced before the court to be acquitted under 141 and 149.

Ø They all must have common Object- The concept of common object is often mixed with the concept of common Intention which is quite different from each other, though they are similar but there also exists a thin line of difference between the both.

Common Object – Common means something which is shared by all, and object refers to the design or the purpose, the ULTERIOR OBJECTIVE.

Common intention – Common means something which is shared between all and Intention refers to the desire of immediate conduct, willful immediate action.

Though, common Intention has nowhere been mentioned/defined under the Indian Penal Code, but it can be derived that it includes higher degree of rashness, knowledge and Negligence. So, an act which has higher degree of all three Rashness, Negligence and knowledge and it will Prima Facie be act of Negligence.

Common Object is something which has a purpose to be achieved, formulating design of a plan which could lead to the achievement of the Purpose

And this is how we can differentiate common Object from Common Intention.

Queen v. Sabid Ali, [5]

FACTS: In the above stated case there were two parties one of whom was Party A and the other was Party B, there was a dispute between both the Parties regarding a piece of land. The members of Party A, who were more than 5 in numbers, decided to take the possession of the Land by removing the members of the other Party and ultimately taking the possession of the disputed property. In commission of this Act there were more than 5 members and one of them took a loaded gun with himself, without informing about it to other members and headed towards the disputed property, where after a heated dispute one of the members, who had the loaded gun, shot a member of the other party and he died.

ISSUES

-Whether the act of all members would come under section 34 or under section 141 read with Section 149.

-Can all the member be held liable for the murder

Analysis- The charges framed on all the members would be under section 141 Read with Section 149 as the ultimate object was to get the possession which comes under the ambit of a purpose, and even taking possession of some property doesn’t involve any act which requires higher degree of rashness, Knowledge, negligence and thus the act cannot fall within the ambit of Section 34 rather under section 149.

The assembly is unlawful within the meaning of section 141 and is punishable under 143 but except the person who fired, cannot be held for section 302 as the act was not a part of the common object, and hence section 149 becomes inapplicable.

Birendra Kumar Ghosh V. King Emperor[6]

In this case the there was a group of four people with the aim of robbing the Post office , one of them stood outside and the other three members went inside with the gun and while performing their task ends up killing one of the bank employees, all of them ran away after completion of their intended task, the person who stood outside got caught later and then claimed of not being directly related to the task , it was held by the honourable court that the act of standing outside to assist them was in furtherance of their common intention, and as per section 34 he was charged under section 302 of the Indian Penal Code.

Ø There act must fall within 5 conditions as stated under section 141

Article 141 of the Indian Penal Code

Under Article 141 of the Indian Penal code tells us about the Unlawful assembly. An assembly can be termed as unlawful when –

· The assembly comprises of 5 or more members and when the members indulged in any of the following acts-

1. It includes the act to restrain the Public Officer from performing its duty, by using criminal force.

2. To resist the execution of any law.

3. Applicable while committing any trespass

4. Taking possession of any property by means of criminal force, or depriving the owner, with the right to enjoy its property

5. By way of using criminal force to compel a person to do something which he is not legally entitled to do or to force him to omit what he is entitled to.

Assembly which was initially not unlawful may subsequently become unlawful.[7]

CONCLUSION

Common Object and Common Intention are often mistakenly be considered to be as same and as a result of which often chances increases that a wrong section is applied to a case, it becomes necessary to distinguish between the same, when in a situation there is a case of willful immediate action and the act involves higher degree of Mens Rea then that is the case of Common Intention but a case when an act is done by 5 or more person in furtherance of an Ulterior objective then it could be said that the Act has been committed in furtherance of Common Objective, in this situation lower degree of Mens rea would suffice.

Intention is nowhere defined in IPC but is the Highest degree of Mens Rea which means that there is Higher Culpability (It refers to responsibility of an Act) than Knowledge, Rashness, Negligence. So, the facts and circumstances would help in determining whether the common intention applies or common Object. For Proving section 149, common Object, the first to be proven is Section 141, If a person has done an act which is not a part of common Object , to which the assembly agreed , then he would solely be held liable for his own Act.

[1] SOME ASPECTS OF OUR FUNDAMENTAL RIGHTS : Article 19 [2] Bare Act, IPC, Section 149 [3] AIR 1975 SC 1917. [4] [1954] S.C.R. 145 [5] 20 Suth WR Cr 5 (FB) [6] AIR 1925 PC 1 [7] Bare Act, IPC, Section 141