Unlawful Assembly

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Unlawful Assembly

Article 19 (1) (b) of the Constitution confers the fundamental right to assemble peacefully and without arms. However, section 141 of the IPC aims to criminalize unlawful assembly.

An unlawful assembly as per section 141 of Indian Penal Code, 1860 (IPC) means an assembly of 5 or more persons if the common object of the assembly is-

  1. To overawe by using criminal force or show criminal force, to Central or any State Government or Parliament or any State Legislature or any public servant; or
  2. To oppose the performance of any law or legal process; or
  3. To carry out any mischief or criminal trespass or any other offence; or
  4. By use of criminal force takes possession of any property or deprives any person of the right to the way or the use of water or any incorporeal right; or
  5. With the use or show of criminal force compels any person to do any illegal act.

As section 141 there has to be at least 5 members and should have any one or more than one common object as mentioned above, to constitute an unlawful assembly. The essence of section 141 requires 5 persons and their common object. Being simply present with other members without any common object does not amount to an unlawful assembly. The mere presence of any person in an assembly without any common object does not make him the member of the unlawful assembly. In Bhanwar Singh v. the State of M.P.,[1] the court held that the common object of an unlawful assembly depends firstly on whether such object can be classified as one of those described under section 141; secondly, such common object need not be the product of prior concert but may form on spur of the moment, finally, nature of such common object is a question of fact to be determined by considering the nature of arms, nature of assembly, behaviour of members etc. The common object essentially to be examined keeping in view the acts of the members and the surrounding circumstances of a particular case. Further, there is always a possibility that an assembly may be turned to an unlawful one.

Member of an Unlawful Assembly

Section 142 of IPC reads – “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.”[2] The essential ingredient of section 142 is that as soon as the person is aware of the fact that the assembly is unlawful, it is to be proved that he remained as the part of such assembly despite to knowing the fact that it is unlawful. The word ‘continues’ under section 142 signifies physical presence as a member of an unlawful assembly, that is, to be physically present in the crowd.[3] This section cannot be attributed to a person who knows that the assembly is unlawful and is present as a just bystander. In the case of Apren Joseph, it was held that the test is whether the person knows the common object of the assembly and continues to keep its company due to his own free will.

Section 143 of the IPC embodies the punishment for being a member of an unlawful assembly. A person who is a part of an unlawful assembly shall be punishable with an imprisonment which may extend to 6 months, or with fine, or with both.

Section 144 of IPC can be said to be an extended version section 143. Section 144 aims to punish the persons armed with a weapon of offence in an unlawful assembly. It prescribes the punishment with imprisonment for a term which may extend to 2 years, or with fine, or with both. The intention of this section is to reduce the risk of hampering the public tranquillity.

Section 145 of IPC prescribes punishment for knowingly joining an unlawful assembly which has been commanded to disperse. This section is in par with section 151 and 148 of IPC. Section 151 talks about the cases of special nature where disobedience will lead to a breach of public peace, further, section 188 deals with cases where there is a violation of any legal order commanded by any public servant. Section 129 of Code of Criminal Procedure provides for special powers to a police officer to command dispersal of an unlawful assembly. 

Section 150 makes liable to persons who were hired for joining the unlawful assembly. It provides that if a person is hired for being a member of an unlawful assembly he shall be liable in the same manner as if he was the member of such assembly and he himself had committed the offence. Section 157 of the IPC is a wider section which provides punishment for harbouring the hired persons. All such person who harbours knowingly that the persons are hired to be the part of an unlawful assembly shall be liable with imprisonment which may extend to 6 months, or with fine, or with both.

Dispersal of Unlawful Assembly by use of Civil Force:

The fundamental right under article 19(1)(b) of the Constitution is subject to reasonable restriction as imposed under article 19(3). Section 129 of Cr.P.C. aims to protect public peace. Section 129(1) confers power to Executive Magistrate or any police officer not below the rank of sub-inspector to command for the dispersal of any unlawful committee or any assembly of 5 or more persons which is likely to cause a disturbance of the public peace. It shall be the duty of the members of the assembly to disperse accordingly, as soon as it is commanded to disperse. The subsection (1) only provides power to command not the power to use force.

Further, under section 129(2) power has been conferred on Executive Magistrate or any police officer not below the rank of sub-inspector to disperse, the assembly commanded to disperse, by force if such assembly does not disperse after being so commanded, or if the assembly by its conduct shows determination not to disperse if not being so commanded. The subsection provides power to use force and may also take the assistance of male persons to disperse the assembly. However, for the purpose of dispersal, no member or officer of armed forces shall be allowed to assist under this section. The power to use force also includes the power to arrest and confine a person, if necessary, for the dispersal of the assembly.

The power given under this section is subject to following conditions:

  1. The assembly must be of 5 or more persons
  2. such assembly is likely to cause a breach of public peace
  3. such assembly need to be dispersed
  4. not to use force until and unless assembly does not disperse, despite being ordered to disperse

Dispersal of Unlawful Assembly by Armed Forces

Section 129 of Cr.P.C. grants no power to armed forces to disperse the unlawful assembly. This power has been given by section 130. Under section 130(1) the Executive Magistrate of the highest rank may command to disperse the assembly by armed forces. This power by the Magistrate can be exercised only if:

  1. the assembly cannot be dispersed otherwise, and
  2. if it is utmost necessary in the public security that such assembly is required to disperse.

Section 130(2) provides that the Magistrate may require any officer of the armed forces to disperse the assembly with the help of armed forces. All such officers are also conferred with power to arrest and confine the members of the assembly in order to disperse it or punish them according to law. Section 130(3) puts check on the power of officers of armed forces. Every officer is required to use little force and do as little harm to the person and property which is necessary for dispersal of assembly. In the case of State of Karnataka v. B. Padmanabha Beliya,[4] when the district armed reserve police fired without lawful orders from the authorities on the members of an unlawful assembly and caused the death of one of the person, it was held that the State Government is vicariously liable and had to pay compensation to the dependants of the deceased.

Section 131 hand over special powers to commissioned or gazetted officer of the armed forces to disperse the assembly. All such officers are authorized to command the dispersal of an assembly only when the public security is considerably endangered by such assembly and no communication with the Executive magistrate is practicable. According to section 132(3) ‘armed forces’ means the military, naval and air forces and also includes any other armed forces of Union.

The section also states the situation where while executing his power it becomes practicable for the officer to communicate with the Magistrate, then, he shall be bound to communicate and shall act as per the instructions of the Magistrate to continue or discontinue the action.

Protection against Prosecution

Section 132 provides protection to persons to who had done any act in the persuasion of their power under section 129, 130 and 131.As per section 132(1), no prosecution shall lie against any person,for any act done pertaining to section 129, 130 and 131, in any Criminal Court except:

  1. with the prior permission of the Central Government where the person is an officer or member of the armed forces;
  2. with the prior permission of the State Government in any other case.

According to section 132(2) following persons shall be deemed have committed no offence:

  1. an Executive Magistrate or a police officer acting in good faith under any of the said section;
  2. a person acting in good faith in compliance with a requisition under section 129 or 130;
  3. the officer of the armed forces acting in good faith under section 131;
  4. the member of the armed forces doing any act in conformity with the order he is bound to obey.

This section specifically provides protection against prosecution to persons who had acted in a bona fide manner. An act done with the absence of good faith will attract liability.

Unlawful Assembly in the United Kingdom

Unlawful Assembly in U.K. means an assembly of 3 or more persons formed to commit a crime or to carry out any lawful or unlawful common purpose in such a manner which would jeopardize the public peace. In Beatty v. Gillbanks,[5] An assembly, otherwise lawful, was not made unlawful if those who take part in it know beforehand that there will probably be organized opposition to it, and that it may cause a breach of the peace. An assembly in U.K. cannot be rendered unlawful unless it is proclaimed by a statute.[6]

Unlawful Assembly in Hong Kong

The laws relating to maintenance of public peace and order in Hong Kong is governed by the Public Order Ordinance. The ordinance defines unlawful assembly as an assembly of 3 or more persons conducting themselves in a disruptive manner or who have gathered to cause the breach of the public peace or provoke other to cause the breach of public peace. The punishment for the members of an unlawful assembly is the imprisonment up to 5 years in case conviction on indictment anda level two fine and three years imprisonment in case of summary conviction.

Illustrations

  1. where 10 or more people are gathered in order to protest the implementation of a law and throwing stones in the persuasion of such protest, is an unlawful assembly.
  2. Where 6 friends in a park are chatting peacefully, does not constitute an unlawful assembly within the section 141 of IPC.

Frequently Asked Questions (FAQs)

  1. What is the definition of unlawful assembly?

An unlawful assembly is being defined under section 141 of IPC. As per section 141, an unlawful assembly means an assembly of 5 or more persons constituted to disrupt the public peace.

  1. What is an unlawful assembly in IPC?

Under IPC an unlawful assembly means an assembly of 5 or more persons who have common object to use criminal force against Central or State Government, to oppose the execution of any law, to obtain possession of any property and to compel any person to do any illegal act. According to section 143, a member of an unlawful assembly shall be punishable with imprisonment which may extend to 6 months or with fine or with both.

  1. What is an unlawful assembly in Hong Kong?

An unlawful assembly in Hong Kong is the assemblance of 3 or more persons with the motive to damage the public peace.

  1. What is the difference between unlawful assemblies and riots?

According to section 146 of IPC riot is the force or violence used by the unlawful assembly or any of its member in fulfilment of the common object of the assembly. The only difference between the unlawful assembly and riot is the use of force. It can be said that the unlawful assembly is the genus and riot is its species.

[References]

[1] Bhanwar Singh v. the State of M.P., (2008) 16 SCC 657.

[2]The Indian Penal Code, 1860, section 142.

[3] Sheo Dayal, (1933) 55 All 689.

[4]State of Karnataka v. B. Padmanabha Beliya, (1992) Cr LJ 634.

[5]Beatty v. Gillbanks, 1882, 9Q. B. D. 308.

[6] R. v. Fursey, 1833, 3 St. Tr. n.s. 543, 567.

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