Unlawful assembly is stated under Chapter VIII of the Indian Penal Code. This chapter consists of offences against the public tranquillity. This chapter has further been divided into four groups wherein unlawful assembly comes under the first group. Unlawful assembly has been defined under section 141 of the Indian Penal Code. Article 19(1)(b) of the constitution confers the fundamental right to assemble peacefully and without arms. However, section 141 of the Indian Penal Code aims to criminalize unlawful assembly.
Unlawful assembly –
Being a member of an unlawful assembly (sections 141, 142, 143).
Joining an unlawful assembly armed with deadly weapons (section 144).
Joining or continuing in an unlawful assembly knowing it has been commanded to disperse (section 145).
Hiring of persons to join an unlawful assembly (section 150).
Harbouring persons hired for an unlawful assembly (section 157).
Being hired to take part in an unlawful assembly (section 158).
SECTION 141 – UNLAWFUL ASSEMBLY
As per defined under section 141 of the Indian Penal Code 1860,
First – To overawe by criminal force, or show criminal force, [the Centre or any State government or Parliament or Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or
Second – To resist the execution of any law, or of any legal process; or
Third – To commit any mischief or criminal trespass, or other offence; or
Fourth – By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right supposed right; or
Fifth – 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.
Explanation – An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”
An unlawful assembly as per section 141 of the Indian Penal Code, means an assembly of 5 or more persons if the common object of the assembly is as follows:
To overawe by using criminal force or show criminal force, to Centre or any State government or Parliament or any State legislature or any public servant; or
To oppose the performance of any law or or legal process; or
To carry out any mischief or criminal trespass; or
By use of criminal force take possession of any property or deprives any person of the right to the way or the use of the water or any incorporeal right; or
With the use or show of criminal force compels any person to do any illegal act.
To constitute the offence of unlawful assembly there should be at least five or more persons indulged into it and they should have the same intent. Thus, the essence of section 141 is that there should be five or more persons with common intent.
However, if there is no common intent and that person is indulged in the unlawful assembly then the person cannot be charged under section 141 of IPC. So, common intent is considered important to frame the accused under this section.
In the case of Bhanwar Singh v. the State of M.P., the court declared three statements upon which the common object of an unlawful assembly depends on –
Whether such objects can be classified as one of those described under section 141 of IPC.
Such common objects may not be from prior concerts but it may be from the spur of the moment.
Nature of such a common object is to be determined by considering the nature of arms, nature of assembly, behaviour of members, etc.
Thus, the common object needs to be determined keeping in mind all the scenarios of the circumstances of a particular case and the acts of the members. Furthermore, there is always a possibility that an assembly be turned into an unlawful one.
However, it is not possible to prove what was in the mind of the persons assembled. The common object of the unlawful assembly can be collected from the nature of the assembly, arms used by them or the behaviour of the occurrence of the scene.
The other most important ingredient is that the common object must be to overawe to criminal force:
The gist of an offence under clause (1) consists in (i) overawing, (ii) by show of criminal force, (iii) the Government, (iv) a public servant in the lawful discharge of his public duty .
A person is said to overawe another when he restraints him by awe, fear of superior influence.
However, overawing merely by superior influence is not criminal, nor is overawing by fear illegal unless it is attended by show of criminal force.
SECTION 142 – BEING MEMBER OF UNLAWFUL ASSEMBLY
As per defined under section 142 of IPC,
The main ingredient of section 142 is that the person is aware of the fact that he is a member an assembly that is unlawful, and the same is proved that he remained part of such assembly with full knowledge of it being unlawful.
The word ‘continues’ in the above section signifies the physical presence of any person as a member of unlawful assembly, that is to be physically present in the crowd.
However, this section does not apply to any person who has the knowledge of the assembly being unlawful but is just present as a bystander.
SECTION 143 – PUNISHMENT
As per defined under section 143 of IPC,
So basically this section embodies the punishment for being a member of an unlawful assembly.
Ingredients as per this section are as follows:
An unlawful assembly is an assembly of five or more persons if their common object is –
To overawe by criminal force
The Central Government, or
The State Government, or
The Legislature, or
Any public servant in the exercise of lawful power;
To resist the execution of law or legal process;
To commit mischief, criminal trespass, or any other offence;
By criminal force-
To take or obtain possession of any property, or
To deprive any person of any incorporeal right, or
To enforce any right or supposed right;
By criminal force to compel any person –
To do what he is not legally bound to do, or
To omit what he is legally entitled to do.
SECTION 144 : JOINING UNLAWFUL ASSEMBLY ARMED WITH DEADLY WEAPON
According to section 144 of the IPC:
“Whoever, being armed with any deadly weapon, or with anything which, used as a deadly weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a period for a term which may extend to two years, or with fine, or with both”
Armed with deadly weapons is an aggregated form of unlawful assembly and hence the enhanced punishment has been provided under section 144 of the code because the risk to public tranquillity is aggravated by the intention of using force evinced by carrying arms. Where the accused is armed with anything which, if used as a weapon of offence, is likely to cause death, he shall be liable under Section 144 of the Code.
Unlawful assembly is defined under Section 141 of IPC. The section defines unlawful assembly as the group of five or more than five people constituting the unlawful assembly. In this, all the members commit an act with the same intention and object. The common object in the cases of unlawful assembly must be to commit an illegal act as specified in the section.
These five illegal objects are:
To overawe Government by criminal force
To resist execution to legal process
Commission of an offence
Forcible possession or dispossession
To compel to do illegal acts
Member of an unlawful assembly is every person, who joins a group of people involved in committing acts that are illegal in nature. There are some conditions which are necessary to hold a person guilty for being a member of the unlawful assembly. These conditions are:
The person joining the assembly must be aware of the facts which render the assembly unlawful which is clearly specified in section 141 of the Indian Penal Code.
The person must intentionally join that assembly, or even if he joined the assembly before being so aware, he must continue in the assembly after becoming so aware of that.
For holding a person guilty under the purview of section 144 Indian Penal Code, it is to be proved that the person did something or has omitted to do an act which he was bound to do. His mere presence does not make him a member of the unlawful assembly and liable to punishment.
As stated earlier, IPC 144 is the aggravated or the more serious form of offence prescribed under section 143. Also, it includes “deadly” weapons which can cause the death of a person. Any person, who commits the offence under the ambit of this section shall be liable to punishment for a term of 2 years of imprisonment or with fine, or with both the measures.
Joining unlawful assembly armed with the deadly weapon is a cognizable and bailable offence, which can be tried by any Magistrate.
DIFFERENCE BETWEEN SECTION 144 AND CURFEW
Section 144 prohibits gathering of four or more people in the concerned area, while during curfew people are instructed to stay indoors for a particular period of time. The government puts a complete restriction on traffic as well. Markets, schools, colleges and offices remain closed under the curfew and only essential services are allowed to run on prior notice.
An offence under Section 144, is cognizable, and warrant may be issued in the first instance. It is bailable, but not compoundable. It is triable by any magistrate.
SECTION 145: JOINING OR CONTINUING IN UNLAWFUL ASSEMBLY, KNOWING IT HAS BEEN COMMANDED TO DISPERSE
Section 145 of the IPC provides that:
“Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”
An offence under Section 145 is cognizable, and warrant may be issued in the first instance. It is bailable but not compoundable and may be tried by any Magistrate.
SECTION 149: EVERY MEMBER OF UNLAWFUL ASSEMBLY GUILTY OF OFFENCE COMMITTED IN PROSECUTION OF THE COMMON OBJECT
Section 145 of the IPC provides that:
“If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, 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, is a member of the same assembly, is guilty of that offence”
The following are the essentials of Section 149:
Commission of an offence by any member of an unlawful assembly;
Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed.
The object of Section 149 is to make clear that an accused person whose case falls within its terms cannot put forward the defence that he did not, with his own hand, commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object.
In Yunis v. State of Madhya Pradesh, it was held that the presence of the accused as part of unlawful assembly is sufficient for conviction. The fact that the accused was a member of unlawful assembly and his presence at the place of occurrence has not been disputed is sufficient to hold him guilty even if no overt act is imputed to him.
In Ram Dular Rai v. State of Bihar, it was held that mere presence in unlawful assembly cannot render a person liable unless he was actuated by common object and that object is one of those set out in section 141 of IPC. Common object is different from a ‘common intention’ as it does ot require prior concert and prior meeting of minds before attack.
Before Section 149 can be called in aid, the court must find with ‘certainty’ that there were at least five persons sharing the common object. Members of an unlawful assembly may have a community of object only up to a certain point, beyond which they may differ in their object, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object will vary, not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of this section may be different as different members of the same unlawful assembly.
SECTION 150: HIRING:
Section 150 of the IPC provides that:
“Whoever hires or engages, or employs, or promotes or connives at the hiring, engagement or employment of any person to join or become a member of any unlawful assembly, shall be punishable as a member of such unlawful assembly, and for any offence which may be committed by such unlawful assembly, and for any offence which may be committed by any such person as a member of such unlawful assembly in pursuance of such hiring, engagement or employment, in the same manner as if he had been a member of such unlawful assembly, or himself had committed such offence”
Section 150 of the Code is intended to punish the persons who are neither abettors nor participants but who nevertheless assist in bringing an unlawful assembly into existence. The hirer will be punishable for any offence committed as if he were a member of the unlawful assembly and as if he had committed the offence.
The word ‘hires’ means procures the use or service of someone at a price; ‘engages’ means ‘secures for service’ ’employs’ means ‘uses as a means or agent’ ‘promotes’ means furthers the progress of; and ‘connives’ means has a private understanding.
The offence under this section is cognizable and non-compoundable.
SECTION 151: KNOWINGLY JOINING OR CONTINUING IN ASSEMBLY OF FIVE OR MORE PERSONS AFTER IT HAS BEEN COMMANDED TO DISPERSE
Section 151 of the IPC provides that:
“Whoever knowingly joins or continues in any unlawful assembly of five or more persons likely to cause a disturbance of the public peace, after such assembly has been lawfully commanded to disperse, shall be punished with imprisonment of either description for a term which may extend to six months or with fine or with both”
If the assembly is an unlawful assembly within the meaning of Section 141, the offender will be punishable under Section 145.
Section 145 of the code punishes the continuance in an assembly after it has been commanded to disperse. In this section the assembly need not be an ‘unlawful assembly’ but if it is likely to cause a disturbance of the public peace, then joining or continuing in such assembly after it has been commanded to disperse is punishable. Section 129 of the Criminal Procedure Code confers on a Magistrate and an officer in charge of a police-station the power to disperse an unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace.
The offence under Section 151 is cognizable, but summons should issue in the first instance. It is bailable but not compoundable, and is triable by any Magistrate and may be tried summarily.
SECTION 157: HARBOURING PERSONS HIRED FOR AN UNLAWFUL ASSEMBLY
Section 157 of the IPC provides that:
“Whoever harbours, receives or assembles, in any house or premises in his occupation or charge, or under his control any persons, knowing that such persons have been hired, engaged, or employed or are about to be hired, engaged or employed, to join or become members of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine or with both”
An offence under Section 157 is cognizable, but summons must be issued in the first instance. It is bailable but not compoundable, and is triable by any Magistrate, and may be tried summarily
SECTION 158: BEING HIRED TO TAKE PART IN AN UNLAWFUL ASSEMBLY OR RIOT
“Whoever is engaged, or hired, or offers or attempts to be hired or engaged, to do or assist in doing any of the acts specified in section 141, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both”
And whoever, being so engaged or hired as aforesaid, goes armed, or engages or offers to go armed, with any deadly weapon or with anything which used as a weapon of offence is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both.
Section 158 of the code is intended to punish those persons who hire themselves out as members of an unlawful assembly or assist any such members. It is divided into two parts. Higher penalty is awarded where the accused is armed with a deadly weapon.
An offence under section 158 is cognizable, but summons should issue in the first instance, unless the offence falls under the second clause in which case a warrant should be issued. But it is in either case bailable though non-compoundable. It may be tried by any Magistrate, and is triable summarily.
UNLAWFUL ASSEMBLY IN OTHER COUNTRIES
Section 144 is a section of the Code of Criminal Procedure, which prohibits assembly of five or more people, holding of public meetings, and carrying of firearms and can be invoked for up to two months. It also gives the magistracy the power to issue orders absolutely at once in urgent cases of nuisance or apprehended danger. With the introduction of Dhaka Metropolitan Police (DMP) in 1976, Section 144 has ceased to operate in the metropolitan jurisdiction in Bangladesh.
Under Part II of the Canadian Criminal Code (Offences Against Public Order),”An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they (a) will disturb the peace tumultuously; or (b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.”
By the 19th century, unlawful assembly, a term used in English Law, described a gathering of three or more people with intent to commit a crime by force, or to carry out a common purpose (whether lawful or unlawful), in such a manner or in such circumstances as would in the opinion of firm and rational men endanger the public peace or create fear of immediate danger to the tranquillity of the neighborhood. A reform commission in 1879 believed that what underlay the first on-point legislation of 1328, outlining when such a crime was recognised nationally (still to adjudged by or via a justice of the peace) was certain landed proprietors at loggerheads employing a band of violent armed retainers, above the traditional manorial bailiffs.
In the Year Book, a legal text, of the third year of Henry VII’s reign, assemblies were expressed as not punishable unless in terrorem: populi domini regis, a threat to the people, God or the King.
In 1882 it was ruled that, on balance, an unlawful assembly would need to be more than participants knowing beforehand of likely formal opposition and the mere prospect of a breach of the peace; by this date a quiltwork of cases had identified certain rights to orderly, lawful protest. All people may, and must if called upon to do so, assist in dispersing an unlawful assembly. An assembly which was lawful could not be rendered unlawful by (court) proclamation unless it were one authorized by statute.
Cementing the English Bill of Rights 1689 banning private armies, meetings for training or drilling, or military movements, were from 1820 unlawful assemblies unless held under lawful authority from the Crown, the Lord-lieutenant, or two justices of the peace.
An unlawful assembly which had made a motion towards its common purpose was termed a rout, if it carried out all or part of its end purpose, e.g., beginning to demolish an enclosure, it became a riot. All three offences were misdemeanours in English law, punishable by fine and imprisonment. The first of these three offences were abolished by the Public Order Acts 1986 for two parts of the UK, the most recent major reform of public order offences, the other two parts having similar legislation.
The common law as to unlawful assembly extended to Ireland, subject to special legislation. The law of Scotland included unlawful assembly under the same head as rioting.
The Public Order Ordinance (chapter 245 of the laws of Hong Kong) defines “unlawful assembly” (§18) as an assembly of three or more people conducting themselves in a “disorderly, intimidating, insulting or provocative manner intended or likely to cause a person reasonably to fear that the people so assembled will conduct a breach of the peace or will by such conduct provoke other persons to commit a breach of the peace”. people taking part in unlawful assemblies can be punished with up to five years’ imprisonment (if indicted) or a level 2 fine (HK$5000) and imprisonment for three years (on summary conviction).
Public order is the core of the governance of the country. This section covers the offences which are committed against the whole society and disturbs the peace and tranquility of the society. Any offence is committed against an individual, but still could derange the public peace would come under the ambit of a public offence. Unlawful assembly comes under this and the whole of it is concluded from section 141 to section 158 of the Indian Penal Code. the unlawful assembly consists of more than five persons and if not then it cannot be considered for an unlawful assembly. Thus, where more than five people gather with a common object to do something unlawful then they all can be convicted under the unlawful assembly.