What is an ‘ Unlawful Assembly’? Who is said to be the member of an unlawful assembly? When is a member of an unlawful assembly constructively liable for the offence committed by any other member of that Assembly? Can less than five persons be convicted with the aid of Section 149? [MPCJ 2019]

Ans. In a group liability pertaining to an unlawful assembly a person may be constructively liable for an offence by virtue of being just a member of it and regardless of the fact that no specific actus reus is attributable to him. In the given question, the point of law involved is being discussed one after other-

Unlawful Assembly:- Under section 141 of the Indian Penal Code an assembly of five or more person gets transformed into an unlawful assembly as and when its common object is relatable to any of the following purposes –

  • To overawe by criminal force Central government or State government or Legislature or Public servant in the exercise of lawful purpose.
  • To resist the execution of law or any legal process.
  • To commit mischief, trespass or other offense.
  • By criminal force to obtain possession of any property or to enforce any right or supposed right or to deprive any person of any incorporeal right.
  • By criminal force to compel any person to do what one is not legally bound to do or to omit what one is legally bound to do.

The fact and attending circumstances are relevant to decide as to what is the common object of an assembly at a given of point of time. The Explanation appended to section 141 of the IPC also clarifies that an assembly which is not unlawful at the commencement may become subsequently an unlawful assembly. So, a requisite common object can develop even after the accused has assembled.

Member of an unlawful assembly:- Section 142 of IPC declares as to who is a member of an unlawful assembly. In order to hold a person as a member of an unlawful assembly, the following two conditions must be satisfied-

  • The person joining the assembly must be aware of the facts which render the assembly unlawful as specified in section 141 of IPC.
  • The person must either intentionally join that assembly or if he joined the assembly before being so aware he must continue in it after becoming so aware. However, after becoming so aware if he chooses to withdraw from that assembly which may be either actual and voluntary or involuntary then for any act after his withdrawal he cannot be made liable.

The Hon’ble Apex Court held in Chandan Bihari Gautam vs State of Bihar, 2002 (9) SCC 208 that mere presence of the accused in not sufficient to hold them guilty for the sharing of common object as the prosecution has to further establish that they were not mere by-standers but in fact were sharing the common object.

Vicarious liability of a member of an unlawful assembly :- If any person is the member of any unlawful assembly at a particular time within the meaning of section 142 of IPC then Section 149 of the IPC makes him vicariously liable for all offences which any other member of that unlawful assembly happens to commit irrespective of his role in the following circumstances-

  • If an offence is committed in prosecution of common object of the unlawful assembly.
  • Or alternatively, If the committed offence is of such nature that such member of the unlawful assembly knew to be likely to be committed in prosecution of common object of the unlawful assembly.

The Hon’ble Apex court held in Mizaji vs State of U.P. AIR 1959 SC 572 that section 149 of the IPC fixes liability under two part and each one is alternative. Therefore, even if the first part of the section does not apply in a given case due to lack of direct relationship with the common object of the unlawful assembly still the liability may be imposed on accused if the committed offence is of such nature that he knew the same likely to be committed. On the part of accused knowledge of the likelihood of the commission of an offence is gathered from the nature of common object for which unlawful assembly is formed and also preparedness such as carrying of formidable weapon , aggressive behaviour etc.

Minimum number of person required to convict with the aid of Section 149 :- To attract section 149 of the IPC, the following conditions must be satisfied-

  • There was an assembly of five persons.
  • The assembly had a common object.
  • The   said common object was to consist one or more of the five illegal object specified in section 141 of the IPC.
  • The particular offence was committed in prosecution of common object or was within required knowledge.

Accordingly, Unlike English Law where only three persons constitutes an unlawful assembly, the number of persons composing unlawful assembly under section 141 of the IPC must be five or more. In fact, this point is no more res-intra, a way back in 1963 the constitutional bench of the hon’ble apex court has established in Mohan Singh vs State of Punjab AIR 1963 SC 174 that where only five named persons have been charged for constituting an unlawful assembly and one or more of them are acquitted, the remaining accused who are less than five in number cannot be convicted as members of an unlawful assembly unless it is proved that the unlawful assembly besides convicted persons consisted of some other persons but they were not identified and so could not be named in the case. The aforesaid law has been yet again reiterated by hon’ble apex in Maina Singh vs State Of Rajasthan AIR 1976 SC 1084.

Thus, the combined reading of sec. 141 and 149 shows that an assembly of less than five member is not an unlawful assembly within the meaning of section 141 and cannot therefore form the basis for conviction of an offence with the aid of section 149. The only situation where less than five persons can be convicted with the aid of Section 149 is that the concerned offence is shown to have been committed by the person who is being convicted along with some other unknown or unidentified persons who could not be named in the case but cumulatively such persons were in five or more in numbers.

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