Difference between Unlawful Assembly & Rioting with Affray

0
206
unlawful assembly

The Indian Penal Code, 1860 is a detailed comprehensive criminal code of India which covers the substantive aspects of criminal law in which Chapter VIII deals with the sections related to offences against the public tranquility which includes the concept of ‘unlawful assembly’, ‘rioting’ and ‘affray’. Offences against public tranquility means the offences which are committed by the large number of persons resulting into disturbance of public peace and harmony. These offences are not only against the person and property of an individual but also an offence that is against the state which shakes the tranquil condition of the state. As per this provision when a large number of persons engage in a criminal act with a common intention then each of the persons are made liable.

It is the fundamental responsibility of the state to maintain the public order. Definition of Public order has been provided in Section 31 of the Police Act, 1861 and requires that order will be maintained in public roads and etc. The laws in India provide a comprehensive framework for the management of order in public spaces. Disturbances created by the use of force or violence or by regional group sections lead to the public tranquility. Even Chapter X of the Code of Criminal Procedure gives the legal provisions for maintenance of public order and tranquility and lays down the duties, powers and functions of the Executive Magistracy and the Police in this behalf. 

Unlawful assembly –

Section 141of Indian Penal Code, 1860 mentions the definition of unlawful assembly which is an assembly which consists of five or more persons having common object those are as follows-

  • Using or showing of criminal force against the Central Government or any State Government or Parliament or any State Legislature or any public servant who is exercising lawful power
  • Resisting the execution of law or legal process
  • Committing any mischief or criminal trespass
  • Using or showing of criminal force to attain possession of any property or depriving any person from exercising his right of enjoyment or other incorporeal rights
  • Using or showing of criminal force to compel a person to do what he is not legally bound to do or to omit which the person is legally entitled to do

Section 142 deals with being a member of unlawful assembly. Whoever intentionally joins in or continues in unlawful assembly knowing the facts is said to be a member of unlawful assembly. The mere presence of a person in that assembly does not constitute such person as a member of unlawful assembly. Every member of unlawful assembly must necessarily have a common object and should intentionally join that assembly. He or she is not a member of unlawful assembly when he withdraws from the unlawful assembly. When a member of unlawful assembly has common object but could not proceed due to the physical weakness or any other injury then such person is said to constitute a member of unlawful assembly. Every member of the unlawful assembly is vicariously liable for the offence committed by the member in an unlawful assembly by the prosecution of the common object.

Section 143 imposes punishment on the person who is the member of the unlawful assembly. This section gives punishment of imprisonment which may extend up to six months or fine or both.  When a person joins the unlawful assembly armed with deadly weapons which has the probability of causing death, then the punishment provided is imprisonment for a term which may extend to two years or fine or both as mentioned in Section 144.

Case Laws –

State of U.P vs Sughar Singh[i]:

Five accessed were lying in a bush on either side of a lane, with armed guns. When the deceased came near, the accused 4 and 5 exhorted him, and accused 2, 3 and 4 shot the deceased with their guns respectively. Accused 1, 2 and 3 threatened the witnesses. The trial court held that all of these were sufficient to come to the conclusion that these five accused had constituted an unlawful assembly and has members had common object to kill the deceased. They had a prearranged plan. The trial court convicted the accused. On appeal, the high court quashed the conviction. The Supreme Court upheld the conviction against the accused.

Moti Das vs State of Bihar[ii] 

It was held that an assembly was lawful but later became unlawful when one of the members called on the others to assault the victim and all the members started chasing the victim and hence constituted unlawful assembly.

Allauddin Mian Sharif Mian v. State of Bihar[iii]

There is a relation between a common object and offence created, when the offence is committed with common object then every person is liable for that.

Rioting

The term ‘rioting’ has been conceptualized under Section 146 of Indian Penal Code which states that every member of an unlawful assembly will be liable whenever they use the means of ‘force’ or ‘violence’ in prosecution of the common object and are guilty for the offence of rioting. Section 147 covers the punishment of rioting which is imprisonment which may extend to two years or with fine or both.

The term of punishment increases to three years imprisonment or fine or with both when rioting is committed armed with deadly weapons. Thus, a riot is a type of civil disorder by disorganized groups of the society lashing out in a sudden and intense rash of violence against authority, property or people. While individuals may attempt to lead or control a riot, riots are typically chaotic and exhibit harsh behavior, and usually generated by civil unrest. Riots occur in reaction to a perceived grievance.

Affray

Sections 159 and 160 of Indian Penal Code deals with the offence of affray. Affray is committed when two or more persons fight in the public place so that it affects the public order and peace. Depending upon the actions done those engaged in Affray may be liable to unlawful assembly, riot and other offences. The seriousness of the effect lies in the effect that the behavior of the accused person may put the members of the public in fear. Beyond the mere use of words, there must be some threatening against a person or persons. Section 160 deals with the punishment for Affray. The punishment may extend to one moth or fine which may extend to one hundred rupees or both.

Ingredients of affray

  • Fight must be taken place between two or more persons,
  • must take place in some public place,
  • should disturb the public peace.

Case laws

Kashthurirangam In re(1970)

Held that active participation is not necessary for actual violence. Some may encourage by words, others by signs and others again may actually cause hurt and yet all would be equally guilty of rioting.

Babu Ram and Anr. vs Emperor[iv]

In this case, a person named Kali Das was attacked by two persons, Babu Ram and Bhim Singh in public and in self defence Kali Das also attacked on them and held that there was no offence of affray between Kali Das and other two persons.

Frequently Asked Questions-

1. What constitutes unlawful assembly?

The three requisites which constitute unlawful assembly are-

  • assembly of five persons or more
  • must have a common object and
  • committing of an act specified as five illegal objects given in the Section 141

2. What is the difference between unlawful assembly and affray?

Unlawful assembly is an assembly which constitutes five or more persons whereas in affray two or more persons are requisite to constitute it. In unlawful assembly, there is no restriction against places whether public or private, it can be anywhere but an affray only takes place in public environment. Another difference is that, in unlawful assembly there must necessarily be common object of all the members and are vicariously liable according to Section 149 but in affray no common object is needed but a fight must take place in order to create disturbance of public peace.

Approved & Published – Sakshi Raje 

References –

[i] AIR 1978 SC 191

[ii] AIR 1954 SC 657

[iii] (1989) Cr LJ 1466 : AIR 1989 SC 1456

[iv][(1930) I.L.R. 53 All229]

Indian Penal Code , 1860, No. 45

Indian Penal Code – S.N Misra (HB) Ed.2017

LEAVE A REPLY

Please enter your comment!
Please enter your name here