By Dhruva Vig
INTRODUCTION
An Assembly can be defined as a group of individuals who are organised and united for some common purpose.
Unlawful assembly[1], on the other hand, has been defined as, “A meeting of three or more persons who intend either to commit a violent crime or to carry out some act, lawful or unlawful, that will constitute a breach of the peace.”
The Indian perspective on such offence differs in the manner where such an assembly is said to be unlawful as and when the members reach five or more in number, as stated in Section 141 of Indian Penal Code, 1860.
In order to be considered ‘unlawful’ in the eyes of law, it is not necessary that the object of the meeting or the assembly should itself be illegal. The test for such offence is, not the illegality of the purpose for which the persons have assembled, but the apprehended danger to the public peace which their meeting might pose to the society.
The mere fact, therefore, that the purpose of such assembly ‘unlawful’ in nature shall not be considered enough proof; and it must be shown that it involves reasonable apprehension of a breach of the public peace.
Thus, if a certain number of persons meet to plan a fraud, they may be guilty of a conspiracy, but their meeting is not an unlawful assembly.
An unlawful assembly differs from a riot in the sense that if the parties assemble in a tumultuous manner and proceed to achieve their common purpose with use of violence, it becomes a riot; but if they merely meet on a purpose, which, if executed, would make them rioters, and having done nothing, they separate without carrying their purpose into effect, it is an unlawful assembly.
On the contrary, the law provides for lawful gathering of people under the powers vested in Article 19 (1)(b) of the Constitution of India, which provides for the provision that “All citizens shall have a right to assemble peaceably and without arms.”
This empowers the fact that every citizen of India has been given freedom to assemble and organise a public gathering or even processions on their own will. Although, such right to assemble is subject to reasonable restrictions by the state in the interest of sovereignty and integrity of India, or public order under clause 3 of Article 19 of the Constitution of India.
Thus, an appropriate authority may prohibit the act of holding up of any public meetings by any number of people, in a case where such authority is of the opinion that prohibiting such holding/gathering is necessary for maintenance of public peace and tranquillity.
There are a few essentials for the offence of Unlawful Assembly. Hence, to constitute the offence unlawful assembly, the following conditions must be fulfilled: –
- There must be an assembly of five persons or more.
- The assembly must have a common object/motive to commit an act or omission.
- The common object must be to commit one of the five illegal objects specified in the section.
LEGAL PROVISIONS
Provisions under Indian Penal Code, 1860
Section 141.Unlawful assembly.—
“An assembly of five or more … legally entitled to do.
Explanation. — An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”
- This section gives us the legal standpoint as to what constitutes as an unlawful assembly, with reference to various situations and scenarios where such offence may be committed under the code, and the unlawful object that needs to be fulfilled to attract the offence of such nature. It may either be done by means of using criminal force against any public servant or for obtaining possession of any property by illicit means or by compelling someone to perform an illegal act or omission, or by execution of any law, or by mischief or criminal trespass, or any other act determined by the court to be in conformity with the above provision of the code.
Section 142. Being member of unlawful assembly.—
“Whoever, being aware … member of an unlawful assembly.”
- This section lays down the description of a member of unlawful assembly, where any person can be regarded as a party to unlawful assembly if he/she decides to intentionally join such an unlawful assembly or continues to be a part of it.
Section 143. Punishment.—
“Whoever is a member … six months, or with fine, or with both.”
- This section talks about the punishments that may be imposed upon a member of an unlawful assembly, where such punishment may be extend to six months or with fine, or both, as the case may be.
Section 144. Joining unlawful assembly armed with deadly weapon.—
“Whoever, being … two years, or with fine, or with both.”
- This section works upon the condition of joining an unlawful where such person has done so with an armed weapon of deadly nature, likely to cause death. It is incumbent that such section be only attracted where such person has:-
a) Joined/is a part of an unlawful assembly
b) Is armed with a deadly weapon
c) Such armed weapon to be used as a weapon of offence and is likely to cause death.
Section 145. Joining or continuing in unlawful assembly, knowing it has been commanded to disperse.—
“Whoever joins or continues … two years, or with fine, or with both.”
- This section further provides that whoever joins or continues to join in an unlawful assembly despite being aware of the fact that such assembly has been commanded by a lawful authority to disperse, shall be punished with imprisonment which may extend to two years, or fine, both, as the case may be.
Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—
“If an offence is … guilty of that offence.”
- This section talks about the offences that have been committed in pursuance of a common object/motive by several members of an unlawful assembly, shall be held guilty under this provision.
Section 150. Hiring, or conniving at hiring, of persons to join unlawful assembly.—
“Whoever hires or engages … committed such offence.”
- This section deals with the act of hiring, or conniving at hiring of persons to join a unlawful assembly, shall be held liable for such act done, via means of engaging, employing, promoting or conniving, to both the person who instigates and the one who is instigated to commit an offence in furtherance of the object of such assembly.
Section 151. Knowingly joining or continuing in assembly of five or more persons after it has been commanded to disperse.—
“Whoever knowingly joins … six months, or with fine, or with both.
Explanation.—If the assembly is an unlawful assembly within the meaning of section 141, the offender will be punishable under section 145.”
- This section talks about the act of joining or continuing to join in an assembly of five or more persons, where such assembly has been lawfully commanded to disperse by an authority, shall be held liable for imprisonment which may extent to six months, or with fine, or both as the case may be.
Section 152. Assaulting or obstructing public servant when suppressing riot, etc.—
“Whoever assaults or … three years, or with fine, or with both.”
- This section deals with the offence of assaulting or obstructing any public servant in the discharge of his/her duty by any member of an unlawful assembly, where such public servant is carrying out his/her duty to disperse the aforementioned assembly or supress a riot or affray. Such person committing the offence of obstructing or using criminal force against the said public servant shall face an imprisonment that may extend to three years, or with fine, or with both as the case may be.
Section 154. Owner or occupier of land on which an unlawful assembly is held.—
“Whenever any unlawful assembly … riot or unlawful assembly.”
- In the section, any owner or occupier of land, or any person claiming an interest in such land or the agent/manager of such land, where an unlawful assembly is being held, hold such assembly or fails to give notice of the same to the nearest police station, shall be held liable for a fine nor exceeding one thousand rupees.
Section 155. Liability of person for whose benefit riot is committed.—
“Whenever a riot … and dispersing the same.”
- This section talks about the liability of an individual for whose benefit or on behalf of any act of riot is committed, or derived any benefit thereof, to be held liable for an unspecified amount of fine.
Section 156. Liability of agent of owner or occupier for whose benefit riot is committed.—
“Whenever a riot … and dispersing the same.”
- Just like the last preceding section, this section deals with the similar offence regarding the liability of agent of owner or occupier for whose benefit such offence of riot was committed.
Section 157. Harbouring persons hired for an unlawful assembly.—
“Whoever harbours … six months, or with fine, or with both.”
- This section deals with the provisions relating to harbouring of persons which have been hired for an unlawful assembly, where the person providing such safe haven is aware of fact that such persons are engaged or will engage in an unlawful assembly, shall be punished with imprisonment extending up to six months, or with fine, or with both as the case may be.
Section 158. Being hired to take part in an unlawful assembly or riot.—
“Whoever is engaged … two years, or with fine, or with both.”
- This section provides for the unlawful act of being hired to take part in an unlawful assembly or riot, where such offence shall be punished with imprisonment extending up to two years, or with fine, or with both as the case maybe.
Provisions under Code of Criminal Procedure, 1973
Section 129. Dispersal of assembly by use of civil force.—
“(1) Any Executive Magistrate or officer in charge … such assembly or that they may be punished according to law.”
- The object of this section is to empower any Executive Magistrate or officer in charge of a police station to pass any command for dispersal of any assembly likely to hamper public peace or any unlawful assembly, by use of force even. Arrest shall be made if necessary, in such process of dispersal of members of assembly resisting the lawful command.
Section 130. Use of armed forces to disperse assembly.—
“(1) If any such assembly … arresting and detaining such persons.”
- This section deals with the use of armed forces for dispersal of an assembly where such cannot be dispersed otherwise, and such dispersal be commanded by the Executive Magistrate of the highest rank present. Arrest, detainment, and confinement may also be made if the case need be.
Section 131. Power of certain armed force officers to disperse assembly.—
“When the public … not continue such action.”
- This section talks about the power of a commissioned or gazetted officer of armed forces, and how he/she may disperse an assembly endangering public security, in situations where no communication can be made with an Executive Magistrate regarding such dispersal.
Section 133. Conditional order for removal of nuisance.—
“(1) Whenever a District Magistrate … lawfully used by the public; or”
- This section provides for the provision of removal of nuisance by a conditional order. Such an order may be issued by any District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate who has been specially empowered to do so by the relevant state government. Such a judicial person may do so upon the report of any police officer, or other information received. Here, the term “public place” also includes property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes (mentioned in explanation clause).
Section 144. Power to issue order in urgent cases of nuisance or apprehended danger .—
“(1) In cases where … public tranquillity, or a riot, or an affray.”
- This section empowers a District Magistrate, a Sub-divisional Magistrate, or any other Executive Magistrate, specially empowered by the state government in this behalf to issue orders in the case where he has sufficient ground to act, and where immediate prevention or speedy remedy is desirable course of action against the apprehended danger. The main objective of S.144 is to issue an immediate order in advance, giving effect to prevent any apprehended danger, or to immediately provide any remedy in cases of emergency if need be.
In a nutshell, the object of this section is to prevent:
- Obstruction, annoyance or injury to any person lawfully employed.
- A danger to human life, health or safety, or
- Disturbance of the public tranquillity or a riot or an affray.
Distinction between Section 133 and Section 144 under Cr.P.C.
Instances of ordinary public nuisance are dealt with under the provisions of section 133 of the Code, whereas instances of urgency is covered under Section 144. Furthermore, the very urgency of the case demands the laying aside of the usual formalities and preliminaries to the issuance of an order under Section 144.
In contrast, under Section 133, the Executive Magistrate acts on the report of a police officer or other information acquired by him. There is no such requirement incumbent upon the Magistrate under section 144 of the Code.
Prohibition of right to Assemble not absolute.
In the case of Dr Anindya Gopal Mitra v. State[2], it was held that the amount of power vested to a magistrate under section 144 is to suspend the exercise of the right in particular occasions, and not to prohibit it in an absolute sense. In this case, a police commissioner refused to give permission to a political party for holding a public meeting, by prohibiting it under section 144 of the Cr.P.C.
The Hon’ble Calcutta High Court quashed the order passed by the police commissioner and held that “the holding of meetings could not be totally prohibited, but necessary restrictions may be imposed, and preventive measures may be taken.”
Duration of applicability of Section 144
Clause (4) of Section 144 of the Code of Criminal Procedure, 1973 talks about the duration for which this section may apply, where such duration may generally extend for up to a period of 2 months from the date of issuance, provided the conditions mentioned under such clause are not fulfilled, which upon fulfilment maybe issue order for a duration of up to six months, as the case maybe.
“Clause (4) ‘no order under this section shall remain in force for more than two months from the date of issuance, provided the state government, if of the opinion that it is necessary to do in case of emergency to prevent danger to human life, health or safety or to prevent a riot, than the state government may order the magistrate to make order to extend the period of applicability of section 144, not more than the period of six months.’”
Since the above section confers powers to a magistrate to take certain action to apprehend danger in cases of emergency, the Magistrate should employ the application of his/her mind to see whether the matter is of such nature which requires issuance of an order under this section, as otherwise, a matter to disperse unlawful assembly creating public nuisance can be dealt with under section 133 of the Code.
LANDMARK CASES
- Moti Das and Others v. State of Bihar[3]
Held:
The apex Court “It is not necessary to entertain the question about the nature of the assembly so formed at its inception. An assembly of individuals which was lawful when it assembled at its inception, can become unlawful subsequently with the passage of time.”
A reference was made to the 18th edition of Ratanlal’s Law of Crimes at p. 333 by the Hon’ble court in these words; “An assembly which is lawful in its inception may become unlawful by the subsequent acts of its members. It may turn unlawful all of a sudden and without previous concert among its members. But an illegal act of one or two members, not acquiesced in by the others, does not change the character of the assembly.”
- Deputy Superintendent and Legal Remembrancer v. Chulhan Ahir and Others[4]
Held:
The Calcutta High Court set aside the order of subordinate court and held that the unlawful act of endangering the lives of people by damaging the railway lines was to be punished with common motive, which was committed by 50 or so men at the time of commission. Here the appellants finding their fields flooded, had cut a channel through the Railway to let the water run off their fields.
Conviction under section 144 was set aside and the appellants were convicted under section 143 with rigorous imprisonment of four months.
- Bishambher Bhagat v. State of Bihar[5]
Held:
“Mere presence of a person at the place where members of an unlawful assembly have gathered for carrying out their illegal common object, does not discriminate him. But the question is one of fact in each case as to whether a person happens to be innocently present at the place of the occurrence or was actually a member of unlawful assembly.”
- State of U.P. v. Niyamat[6]
Held:
Common object to rescue person from unlawful custody of police will not constitute the assembly an unlawful assembly.
- Lalji v. State of U.P.[7]
Held:
“Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.”
- Tanaji Govind Misal v. State of Maharashtra[8]
Held:
Section 141 of IPC was discussed by the court regarding the issue of sudden unpremeditated free fight between two groups. Here, members of such groups could not be said to have formed an unlawful assembly. However, on facts of the incident in question, held, was not of sudden premeditated free fight.
- Lokeman Shah v. State of W.B.[9]
Held:
Section 142, IPC “pertains to a person who intentionally joins an unlawful assembly and continues to involve himself in it. The only condition which the section envisages is that the person who joins the unlawful assembly should have been aware of the facts which rendered such assembly unlawful. If he knew that an unlawful assembly had been formed with a common object and if he has chosen to join it en route to its destination the person joining midway can also be fastened with the vicarious liability envisaged in Section 149 IPC, unless he drops himself out before reaching such destination.
The appellant joined the unlawful assembly knowing fully well that it had already become unlawful as its common object was to chase the persons whom the rioters believed to be responsible for defilement of the mosque. It is immaterial that the deceased had no part in the destruction or defilement of any mosque, but the rioters believed him to be the one. The chasers carried with them explosive and lethal weapons. In such broad circumstances it would be inane to presume that the common object of those chasers was something less than finishing the prey whom they were chasing after.”
- Dalbir Singh & Ors. V. State of Punjab[10]
Held:
Where accused persons are held to be members of unlawful assembly and convicted under Section 148, it is not necessary to go into question as to which of the accused caused which particular injury.
Reference-
- Black’s Law Dictionary 9th ed. Pg. 132 “unlawful assembly” ↑
- Dr Anindya Gopal Mitra v. State, 1993 CrLJ 2096 (cal) ↑
- Moti Das and Others v. State of Bihar, AIR 1954 SC 657 : 1954 Cri LJ 1708 para 7 & 8 ↑
- Deputy Superintendent and Legal Remembrancer v. Chulhan Ahir, 1908 SCC OnLine Cal 283 : 1912 Cri LJ 138 ↑
- Bishambher Bhagat v. State of Bihar, (1972) 3 SCC 260 : 1972 SCC (Cri) 485 : AIR 1971 SC 2381 para 6 ↑
- State of U.P. v. Niyamat, (1987) 3 SCC 434 : AIR 1987 SC 1652 para 15 ↑
- Lalji v. State of U.P., (1989) 1 SCC 437 : AIR 1989 SC 753 ↑
- Tanaji Govind Misal v. State of Maharashtra, (1997) 8 SCC 340 : AIR 1998 SC 174 ↑
- Lokeman Shah v. State of W.B., (2001) 5 SCC 235 para 22 & 23 : AIR 2001 SC 1760 ↑
- Dalbir Singh & Ors. v. State of Punjab, (1987) 3 SCC 360 para 16 ↑
