When an unlawful assembly becomes a riot?

The Statutory Proposition

Section 146 of the Indian Penal Code, 1860 — reproduced without change in Section 191(1) of the Bharatiya Nyaya Sanhita, 2023 — states with crisp finality: "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."

Taken word by word, it reveals that the legislature has consciously built riot upon the pre-existing structure of the unlawful assembly defined in Section 141 IPC / Section 189(1) BNS.

The Unlawful Assembly as the Indispensable Prerequisite

An unlawful assembly, as we know from Section 189(1) BNS, requires three things to coexist: an assembly of five or more persons, a common object shared by all members, and that common object must be one of five specific illegal purposes — ranging from overawing the Government, to resisting legal process, to committing offences, to forcible possession of property, to compelling a person to do or omit to do something against his legal rights.

Rioting can only be charged against a person who is already a member of an unlawful assembly within the meaning of Section 189. It presupposes an assembly in existence — assembled, aware of a common illegal object, and constituted of five or more persons. This requirement that the unlawful assembly must pre-exist, or must exist at the moment the force is employed, is absolute. There is no exception. In Hazara Singh v. State of Punjab (AIR 1971 SC 529), the Supreme Court categorically held that in order to establish the offence of rioting, it must first be established that there existed an unlawful assembly within the meaning of Section 141 IPC and that force was used in prosecution of the common object of that assembly. Without satisfying the conditions of Section 141, there can be no rioting under Section 146.

The Catalytic Moment: Force or Violence

Once a lawful or unlawful assembly exists, the single element that converts it into a riot is the use of force or violence in prosecution of the common object. Each word carries weight.

'Force or Violence'

Force and violence are not synonymous in ordinary usage, but in the context of this provision they cover the entire spectrum — from the slightest application of physical compulsion to a person, to a full-blooded assault. As Plowden J observed in Rasul (1889 PR No. 4), it is only the use of force that distinguishes rioting from an unlawful assembly. The law does not demand a high threshold of force. Established case law makes clear that even the slightest use of force by any one member of the assembly is sufficient to constitute rioting — the moment a member of the assembly throws down a man or pushes him while pursuing the common object, the offence is constituted.

Force must be distinguished from mere show of criminal force, which is sufficient to constitute an unlawful assembly under Section 189(1)(a) BNS. For rioting, however, actual use of force is necessary — a threat or show is not enough. Where five men with lathis surround a rival farmer and only make threatening gestures without actually striking anyone, they remain an unlawful assembly; the moment a single blow is struck in pursuit of the common purpose of taking possession, they become rioters.

'In Prosecution of the Common Object'

The force must be used in prosecution of the common object. This is the crucial nexus that the prosecution must establish. It is not sufficient to show that members of an assembly were violent; the prosecution must show that the violence was employed to achieve the shared illegal purpose. Where a member of an assembly commits an act of violence for an entirely personal and unconnected reason — a private quarrel with a bystander, for example — that act does not convert the assembly into a riot. The Supreme Court affirmed this in Hazara Singh v. State of Punjab (AIR 1971 SC 529): the use of force or violence must be specifically in prosecution of the common object — a stray act entirely unconnected to the common design will not suffice.

In Mizaji v. State of Uttar Pradesh (AIR 1959 SC 572), five persons armed with a pistol, a spear, and lathis assembled in a disputed field with the common object of taking forcible possession — an object falling squarely within the fourth clause of Section 141 IPC. When the opposing party resisted, the assembly collectively threatened them and one member fired a pistol killing the complainant. The Supreme Court held that the killing was immediately connected with the common object of taking forcible possession at any cost — members were prepared to use force for that object — and therefore all five were liable for murder under Section 302 read with Section 149 IPC.

The Graduated Progression: From Lawful Assembly to Unlawful Assembly to Riot

One of the most practically important features of this branch of law is enshrined in the Explanation to Section 189(1) BNS: "An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." This principle has a natural corollary — an assembly which becomes unlawful may further become a riot the moment force is applied.

The progression can thus be visualised in three stages:

Stage 1 — Lawful Assembly: Five or more persons assemble for a perfectly legitimate purpose — a community meeting, a panchayat gathering, a religious procession, or a protest march.

Stage 2 — Unlawful Assembly: At some point during the gathering, the members adopt a common object falling within the five specified illegal purposes in Section 189(1) BNS. The assembly has not yet used force, but it now harbours an illegal common design. Every member who continues with knowledge of this design becomes a member of the unlawful assembly.

Stage 3 — Riot: A member of the unlawful assembly — any member — uses force or violence in prosecution of that common object. At this precise moment, the entire assembly graduates into rioting. Every member, whether armed or unarmed, whether actively violent or standing passively, becomes guilty of rioting under Section 191 BNS.

The Supreme Court illustrated this progression eloquently in Moti Das v. State of Bihar (AIR 1954 SC 657). The assembly started as a lawful one. It became unlawful the moment one of the members called on the others to assault the victim and the members, responding to that call, chased the fleeing victim. The chase itself — involving physical pursuit — was held to be sufficient force in prosecution of the common object of assault. The unlawful assembly had, by that act, crossed over into rioting.

Similarly, in Chandrika Prasad v. State of Bihar (AIR 1972 SC 109), the Supreme Court upheld convictions where the common unlawful object developed at the scene itself, and the members of the assembly did not remain passive spectators but actively participated in the pursuit of that object. The court held that where members continue in an assembly that has become unlawful, with knowledge of its character, and indulge in overt acts alongside others, the character of the assembly as a riot is established.

The Concept of 'Rout' and Its Relevance

English law drew a distinction between three stages of collective disorder: the unlawful assembly, the rout, and the riot. An unlawful assembly, in English law, is the assembly itself; a rout is when the assembled persons have begun to make some actual movement towards executing their common purpose though they have not yet executed it; a riot is when the common purpose is actually, at least in part, executed with force or violence.

The BNS, like the IPC before it, makes no formal legislative distinction between a rout and a riot. However, the courts have used this conceptual framework to understand the graduated character of collective disorder. A rout becomes a riot the moment some act is done in part execution of the common unlawful purpose. As the text explains, "the unlawful assembly becomes a rout as soon as some act has been done moving towards the execution of the common purpose, and the rout becomes riot when some act is done in part execution of this common purpose." While the BNS has subsumed both into the single concept of rioting, the progression still serves as an important analytical tool in understanding how far along the path of execution the assembly had reached.

The Doctrine of Constructive Liability: Why Every Member Becomes a Rioter

The most consequential feature of the transition from unlawful assembly to riot is its universal impact on all members. Section 191(1) BNS declares that every member of the assembly is guilty of rioting the moment force is used by any one member in prosecution of the common object. This is not metaphor — it is a statutory rule of constructive liability.

This doctrine operates alongside Section 190 BNS (erstwhile Section 149 IPC), which extends liability for any offence committed by a member in prosecution of the common object to every other member. The combined effect is stark: a person who joins an unlawful assembly, knowing its character, and who remains in it when force is used by any one member — even if he personally stands still, says nothing, and strikes nobody — is equally guilty of rioting. His membership is his participation.

The Supreme Court has qualified this in one important respect. In Daya Kishan v. State (Punjab and Haryana), the Court set aside a conviction for murder under Section 302/149 IPC and held that the common object of the assembly must be proved — it is not enough to show that one member was armed with a deadly weapon if it cannot be shown that the common object included causing death or that each member knew death was likely to be caused. Constructive liability under Section 190 BNS has two gateways — prosecution of the common object, and knowledge that an offence was likely to be committed. The prosecution must establish which gateway applies to each accused.

An Integrated Illustration

Consider a scenario drawn from the logic of these authorities. A group of ten persons belonging to a rival caste assemble outside the home of a Dalit farmer who has recently won a land dispute. Initially they have gathered to express protest — a lawful purpose. One among them shouts that the farmer should be driven off the land and the rest respond with agreement — the assembly has now adopted a common object of criminal trespass, falling under Section 189(1)(c) BNS, and has become an unlawful assembly. Another shouts that they should take forcible possession — the common object shifts to Section 189(1)(d). Two members pick up lathis and rush at the farmer's workers, striking them. At that precise moment — the moment the lathis land — the unlawful assembly becomes a riot under Section 191(1) BNS. All ten members, including those who contributed nothing but their physical presence and awareness, become guilty of rioting. If in that melee a worker is killed, all ten may face liability for murder under Section 302 read with Section 190 BNS, if it is shown that causing death was either the common object or a foreseeable likely consequence.

The Precise Moment of Transition — A Summary

It is worth restating, with precision, the exact conditions whose simultaneous fulfillment converts an unlawful assembly into a riot:

• There must already exist an unlawful assembly of five or more persons with an illegal common object under Section 189(1) BNS

• Any member of that assembly — it need not be all, it need not be five — uses force or violence

• That force or violence must be used in prosecution of the common object, not for some private, personal, or unconnected purpose

The instant all three conditions are satisfied, every person who is a member of the unlawful assembly at that moment becomes guilty of rioting. The law is unsparing in its logic: one joins an unlawful assembly at one's own risk, and bears the responsibility for the force that any co-member employs in furtherance of the shared illegal purpose. As Lord Sumner reminded us in Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1) — a principle that finds equal application in the law of unlawful assembly — "they also serve who only stand and wait."