Write short note on "Unlawful assembly".

The Statutory Definition

Section 141 of the Indian Penal Code, 1860 — now substantially preserved and consolidated in Section 189 of the Bharatiya Nyaya Sanhita, 2023 — defines an unlawful assembly as an assembly of five or more persons whose common object is to commit any one of five specified illegal acts. Section 189 BNS is a remarkable piece of legislative consolidation. The erstwhile IPC spread the law of unlawful assembly across nearly ten sections — Sections 141 to 145, 150, 151, 157 and 158. The BNS has merged all of them into a single, comprehensive omnibus provision under Section 189, covering the definition, membership, punishment, hiring of persons, and harbouring — all within one structural whole.

Under Section 189(1) BNS, an unlawful assembly is defined as an assembly of five or more persons whose common object is:

• To overawe by criminal force the Government or any public servant in the exercise of a lawful power

• To resist the execution of any law or of any legal process

• To commit any mischief or criminal trespass, or other offence

• By means of criminal force or show of criminal force, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, water, or other incorporeal right

• 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

The Explanation attached to this sub-section states that an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly — a provision of great practical importance that will be discussed presently.

The Three Essential Ingredients

To constitute an unlawful assembly, three conditions must exist simultaneously. First, there must be an assembly of five or more persons. Second, the assembly must have a common object. Third, that common object must be one of the five illegal objects specified in the definition. If any one of these three conditions is absent, there is no unlawful assembly.

The Number: Five or More

The insistence on five persons marks a deliberate departure from English law, which requires only three. In R. v. Hunt (1820), the English courts defined an unlawful assembly as an assembly of three or more persons assembled with an intent to carry out a common purpose in such a manner as to give firm and courageous persons reasonable grounds to apprehend a breach of the peace. Indian law, calibrated to its own conditions, set the threshold higher — at five. The reason is not difficult to appreciate: in a country as populous and democratically vibrant as India, small gatherings must not easily attract criminal liability. The higher threshold protects legitimate political and social expression.

But a complication arises when, of the five or more persons charged, some are acquitted. The Supreme Court addressed this with clarity in Mohan Singh v. State of Punjab (AIR 1963 SC 174), where five named persons were charged and two were acquitted. The court held that the remaining three could not be convicted as members of an unlawful assembly unless there was evidence that other, unidentified persons also participated. This principle was reaffirmed in Maina Singh v. State of Rajasthan (AIR 1976 SC 1084) and Achhey Lal v. State of Uttar Pradesh (1978 CrLJ 1101).

However, in Kartar Singh v. State of Punjab (AIR 1961 SC 1787), the Supreme Court clarified that where, though only three persons were convicted, sufficient evidence showed that several other unidentified persons also participated in the unlawful assembly, the conviction could stand. The rule from Ram Bilas Singh v. State of Bihar (1964 CrLJ 573) is that a court may hold an unlawful assembly to exist even where fewer than five persons are convicted, provided it is established — whether through the charge, the FIR, or other evidence — that unnamed or unidentified persons also formed part of the assembly.

The Common Object

The soul of the offence lies in the common object — not merely a similar or identical object, but one that is shared and known to all members of the assembly. As the Allahabad court observed in Shiekh Yusuf v. Emperor (AIR 1946 Pat 127), the word "object" means the purpose or design, and it must be common to the persons who compose the assembly. A person cannot be made a member of an unlawful assembly on the ground that five people happened to be in the same place — each must know and share the common unlawful purpose. The Supreme Court echoed this in Dharam Pal v. State of Uttar Pradesh (AIR 1975 SC 1917), where it was held that where only four of five accused were found to have shared a common object, the assembly could not be an unlawful assembly.

It is important to note that the common object does not require a prior meeting of minds or a pre-arranged plan — this is what distinguishes it from common intention under Section 34 IPC (Section 3(5) BNS). An unlawful assembly can crystallise spontaneously, on the spot, when five or more persons converge upon an illegal purpose without any prior concert. The Explanation to Section 189(1) BNS emphasises this by stating that an originally lawful assembly may subsequently become unlawful. This was illustrated in Moti Das v. State of Bihar (AIR 1954 SC 657), where an assembly that was peaceful became unlawful the moment one of its members called upon the others to assault the victim and they responded by chasing the victim. Similarly, in Chandrika Prasad v. State of Bihar (AIR 1972 SC 109), the Supreme Court upheld conviction where the assembly, though lawful at its inception, became unlawful by the subsequent conduct of its members who indulged in overt acts.

Mere Presence Is Not Enough

A principle of fundamental importance, repeatedly affirmed by the Supreme Court, is that mere presence in an assembly does not make a person a member of an unlawful assembly. In Baladin v. State of Uttar Pradesh (AIR 1956 SC 181), the court set aside the convictions of several accused who had been present at the scene of a communal attack but against whom no specific overt act could be attributed and who had no knowledge of the common object. The court examined each case individually, maintaining that passive spectators who neither joined the assembly nor acted in furtherance of its object cannot be held liable. Again in Shivjee Singh v. State of Bihar (AIR 2009 SC 417), the Apex Court reiterated that membership requires both awareness of the unlawful character of the assembly and intentional participation.

Membership of an Unlawful Assembly

Section 142 IPC — now Section 189(2) BNS — declares who is a member. A person is a member if, being aware of the facts which render the assembly unlawful, he intentionally joins it or continues in it. Two elements are essential: (a) awareness of the unlawful character, and (b) intentional joining or continuation. A person who unknowingly wanders into an unlawful assembly and immediately withdraws upon discovering its character does not become a member. A member may also withdraw from the assembly — but withdrawal must be genuine, actual, and voluntary.

Punishment

The IPC spread punishment across Sections 143 to 145. Under the BNS, the scheme is contained within Section 189 itself, with sub-sections prescribing different levels of punishment:

The Crucial Doctrine: Joint Liability Under Section 190 BNS

Perhaps the most consequential provision in this chapter is Section 149 IPC — now Section 190 BNS — which enacts the principle of constructive or vicarious liability. It provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object, every person who is a member of that assembly at the time of the commission of that offence is guilty of that offence. This means that a person who stands at the periphery of an unlawful assembly, armed with nothing but membership and awareness of the common object, becomes liable for a murder committed by one of his co-members — even if he personally struck no blow.

The section has two distinct parts. The first holds every member liable for an offence committed in prosecution of the common object. The second holds every member liable for an offence which the members knew to be likely to be committed in prosecution of that object. In Shambhu Nath Singh v. State of Bihar (AIR 1960 SC 725), the Supreme Court lucidly explained the distinction: the first part requires that the offence be actually the common object or directly connected to it; the second part requires positive knowledge — not mere possibility — that such an offence was likely to be committed. As the court put it, the word "knew" in the second part implies something more than a possibility and cannot be made to bear the sense of "might have been known."

In Mizaji v. State of Uttar Pradesh (AIR 1959 SC 572), five persons armed with various weapons went to a field in dispute with a common object of taking forcible possession. When the other party objected, one of the five fired a pistol and killed a person. The Supreme Court held all five liable for murder, as the members were prepared to take forcible possession at any cost and the murder was immediately connected with the common object. Similarly, in State of Rajasthan v. Nathu (2003) 5 SCC 537, the court restored the conviction of all five accused who had entered a house, broken through a wall, and killed the children of their adversary, holding that all shared the common object and were vicariously liable.

However, Section 190 BNS is not absolute in its sweep. In Daya Kishan v. State (arising from Punjab & Haryana), the Supreme Court set aside the conviction of a member for murder under Section 302/149, holding that merely being a member of an unlawful assembly, one of whose members happened to carry a gun, does not automatically impose liability for murder if the prosecution fails to establish that the common object included causing death and that the accused knew death was likely to be caused.

Distinction Between Common Intention and Common Object

Students frequently confuse Section 34 IPC/Section 3(5) BNS (common intention) with Section 149 IPC/Section 190 BNS (common object). The distinction was drawn with precision by the Supreme Court in Nanak Chand v. State of Punjab (1955) and in numerous later decisions. Common intention requires active participation and prior concert — a pre-arranged plan, expressed or implied. Common object does not require a pre-meeting of minds — it may develop spontaneously. More significantly, under Section 34, every person must actively participate in the criminal act. Under Section 149, being a member of the unlawful assembly at the time the offence is committed is sufficient — active participation by each person is not required. In sum, Section 34 deals with participation, while Section 149 deals with membership.

An Illustrative Scenario

The working of these provisions can be understood through a concrete illustration. Suppose five farmers — A, B, C, D and E — armed with lathis, go together to the field of their neighbour Z with the common object of forcibly taking possession of a strip of disputed land. Z's son comes forward to resist them. A strikes Z's son with a lathi, causing grievous hurt. B, C, D and E stand around and do nothing. All five are members of an unlawful assembly. A is directly liable for causing grievous hurt. But B, C, D and E are also liable for that offence under Section 190 BNS, since the inflicting of injuries was an offence committed in prosecution of the common object of taking forcible possession by force — an act the members knew was likely to result in hurt.

The provisions of the law of unlawful assembly thus cast a wide net — purposely so. The mischief that a group of people bent on an illegal purpose can cause is exponentially greater than what each can do individually, and the law's response is proportionately firm. As the Supreme Court observed in Umesh Singh's case, every member of an unlawful assembly who shares the common object is equally answerable for the acts of any other member — for they "also serve who only stand and wait," to borrow Lord Sumner's memorable phrase from Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1).