Five or more persons
According to it, for an unlawful assembly there must be a minimum of five persons. Therefore, an assembly of up to four persons cannot be designated an unlawful assembly. An assembly of five or more persons’ becomes an unlawful assembly only when the common object of the members composing it falls under at least any one of the five clauses enumerated in the section.
The expression ‘common object’ has nowhere been defined in the Code. It, however, means that the object must be common to the person comprising the assembly, that is to say, that they are all aware of it and concur in it. But the object cannot remain only as a distant dream. There has to be some present and immediate purpose of carrying the object into effect.
An object is different from intention. Proof of intention is comparatively much more difficult and absolutely conclusive evidence is required for the same. Though the object of an assembly may be common, the intentions of the members of the assembly may differ and the only similarity amongst these may be that they all are unlawful. A common object does not require a prior meeting of minds or prior concert like common intention. In common object each member may have the same object in view but all must act as one assembly to achieve the same.
It is not necessary that they must have the prohibited common object at the time of assembling for the first time; it may develop later on also. ‘Object’ means purpose or design and in order to make it ‘common’ it must be shared by all. Unlawful assembly may be formed at any stage by all or a few members; it may be modified or altered or abandoned at any stage.
The mere fact that there was a probability of the public peace being disturbed with the formation of an assembly with five or more persons does not prove that it was an unlawful assembly. Where five or more persons sitting at a place were conversing that they would break the heads of those who would demand taxes from them, they could not be said to be members of an unlawful assembly.
Similarly, where five or more persons had agreed as to what should they individually do when they were asked to pay taxes, the assembly could not be said to be an unlawful assembly. The inference of common object i5 quite Often drawn from the overt act done by persons. But that does not necessarily mean that in the absence of proof of overt act against someone, he cannot be held to be a member of unlawful assembly even if the other evidence so warrants.
Presence in the assembly
The courts have frequently been confronted with the question of liability of such persons as have been present at the place where an unlawful assembly existed. In Baladin v. State, the appellants who were original inhabitants of a village were convicted of the murder of some refugees who had been settled in that village by the government.
The ground of conviction was that the villagers did not want that the refugees should settle in their village at the instance of the government and so they developed a common object of murdering them. The Supreme Court held that criminal law requires the guilt to be proved beyond a reasonable doubt and, therefore, merely because some of the appellants were present at the scene of the assembly did not ipso facto mean that they all had a common object with the others to kill the settlers.
The prosecution must prove that the persons who were present at the scene had a common object along with rest of the others and since that could not be done with respect to some appellants, their appeal was liable to be accepted.
In Masalti v. State, the Supreme Court further clarified the Baladin observations and held that if it is proved that certain persons had got mingled in an unlawful assembly as passive spectators, they could not be held guilty as members of the assembly.
The Supreme Court emphasized in Muthu Naiker v. State, that in an uneventful villager life whenever something happens, such as a fight between two factions, some villager join as mere curious onlookers and they cannot be held to be members of unlawful assembly.
Similarly, where some unarmed persons were sought to be held members of an unlawful assembly along with some other armed members of a gang, it was held that the evidence did not prove this and mere presence at the scene did not make them members of the assembly. Where two groups first began to quarrel which later on changed into a fight, it could not be held that they were members of an unlawful assembly.
The Supreme Court observed in Bishamabhar Bhagat v. State, that mere presence of a person at the place where members of an unlawful assembly have gathered for carrying out their unlawful common object does not incriminate him. The question is one of fact in each case as to whether a person happens to be innocently present there or is actually a member of the unlawful assembly.
According to the first clause, an assembly of five or more persons is an unlawful assembly if the common object of the persons composing it is to overawe by criminal force, or show of criminal force, the central or and state governments or parliament or the legislature of any state, or any public servant in the exercise of the lawful power of such public servant.
The language makes it clear that to overawe either actual criminal force may be used or there may only be a show of criminal force. Mere overawing without criminal force or show of criminal force will not attract the clause. Perhaps overawing is not possible without the use or show of criminal force but the clause insists on this requirement as does section 121-A of the Code also. Criminal force has been defined under section 350 and public servant under section 21 of the Code.
The clause does not specifically state that in case of overawing of central or state governments or parliament or state legislature it should be in the exercise of the lawful power of such government, or the parliament or the state legislature, as the case may be. But it does state clearly that if the overawing is of any public servant then it must be in the exercise of the lawful power of such public servant.
Overawing, it seems, is possible only with respect to the government’s or the parliament’s or the state legislature’s exercise of power and, therefore, there was no need to state this specifically. But in case of public servants, the power of each public servant is different from that of the other and, therefore,- it had to be specifically mentioned that in case of overawing of a public servant, it must be in the exercise of the lawful power of that particular public servant who is being overawed.
When a superior influence keeps someone in awe so that he fears to do what he has in his mind, and which he is, legally empowered to do, it is said that he is overawed. A crowd which gathered at a place to see as to what were the police going to do against a person who had escaped from lawful custody and there was no criminal force or show of criminal force by it, the crowd could not be held to be an unlawful assembly.
According to the second clause, an assembly of five or more persons becomes an unlawful assembly if the common object of the persons composing the same is to resist the execution of any law, or of any legal process. Execution of any law means carrying out provisions of any law and executing a legal process means to take necessary measures in accordance with the law. An order passed in accordance with the law is an execution of law. To execute such an order through necessary measures is an execution of legal process.
For instance, passing an order of arrest under the law is an execution of law, and arresting the concerned person through a warrant of arrest is execution of a legal process. Assembling with the common object to resist either of these by five or more persons becomes an unlawful assembly within this clause of the section.
But resistance of unlawful search or to illegal arrest does not make a group an unlawful assembly. The Supreme Court has held in State v. Niyama, that assembling at a place with the common object of releasing a friend from illegal detention by the police does not constitute an unlawful assembly.
In another famous case a police party got the information that certain persons were waiting near the railway tracks at a place with the intention of robbing a train. The party reached the spot and found some persons sitting or roaming near the tracks. The policemen were able to overpower them after stiff resistance.
It was held that the persons were not members of an unlawful assembly because the prosecution failed to prove that the accused persons had the common object falling under any fire clauses of section 141 of the Code and, therefore, while resisting their illegal arrest, they were entitled to use reasonable force, and that could not be held to be the common object of resisting the execution of law or of legal process.
On the other hand, where the processionists violated the conditions laid down in the licence with respect to the route to be taken by them and the point up to which they could go, and when confronted by the police they tried determinededly to break through the cordon, they were held to be members of unlawful assembly.
The third clause of section 141 states that an assembly of five or more persons is an unlawful assembly if the common object of the persons composing it is to commit mischief, criminal trespass, or other offence. Mischief and criminal trespass have been defined under sections 425 and 441 of the Code respectively.
But the main question under this clause is the interpretation of the expression ‘or other offence’. The word ‘offence’ is intended to include other offences as well, and is not to be interpreted ejusdem generis as being restricted to the likes of the offences of mischief and criminal trespass only. Section 40 of the Code which defines the word ‘offence’ expressly states in the third para that in section 141, and in some other sections mentioned therein, the word ‘offence’ has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine. Therefore, the expression ‘or other offence’ in this clause seems to denote that all offences are included within it although only two are enumerated in a haphazard way.
In Molian Lal v. State,’ the alleged main offender in a child lifting case was arrested by the police and at his instance the dead body of the child was recovered. Even after this, there was not much progress in the case on the part of the police to see to it that criminal proceedings were started against him. A crowd had gathered at the police out post with a view to protest against the police inaction.
On the question as to whether the crowd was an unlawful assembly, the Allahabad High Court ruled otherwise and observed that there was no common object on the part of the crowd to commit mischief, criminal trespass or other offence, and consequently, if any member from the crowd had indulged in acts of violence and arson, he alone should be charged for the same.
Where a licence under section 32 of the Police Act was given to organisers of a procession and they flouted the conditions of the licence, they could not be termed members of an unlawful assembly as violation of the abovementioned provision is visited with a penalty of the fine of Rs. 200/- only and, therefore, it did not come within the word ‘offence’ under the third clause of the section.
The fourth clause of this section states that an assembly of five or more persons becomes an unlawful assembly if the common object of the persons composing it is 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 or supposed right. Use or show of criminal force is necessary under this clause also like the first clause.
This use or show of criminal force must be to any person (1) either to take or obtain possession of property, whether movable or immovable, or (2) to deprive any person of enjoyment of a right of way, or
(3) To deprive any person of the use of water or other incorporeal right which he possesses or enjoys, or (4) to enforce any right or supposed right. One is entitled to resist and repel an aggression against possession of his property because he is thereby trying to maintain his possession which he is entitled by law to do, and which is different from his act’ to take or obtain possession of any property’ as stated in this clause.
To enforce any right or supposed right
The expression ‘to enforce any right’ can be applicable only when the persons claiming the right do not have possession over the subject of the right, and in this sense it is different from maintaining a right. Therefore, enforcing any right can only be limited to the initial act whereas maintaining a right can be done when they have already achieved possession over the subject of the right. ‘Supposed right’ means in fact there is no right but the belief is that there is a right. Assertion of the right of private defence under the permissible limits of the law does not mean enforcing any right or supposed right.
According to the fifth clause of this section, an assembly of five or more persons becomes an unlawful assembly if the common object of its members is 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 ambit of this clause is very wide. Common object of compelling one to do what he is not legally bound to do or not allowing him to do what he is legally entitled to do, by means, or by show of criminal force makes the assembly unlawful within this clause. Use of criminal force or show of it is essential under this clause also as in the first and fourth clauses. Absence of the same will not attract this clause.
Where a procession was moving on the permitted route accompanied with music, and it was attacked by brick-bats, stones and soda water bottles, collected inside a mosque, all those persons indulging in this activity were held to be members of an unlawful assembly as their common object was not to allow the processionist to move forward and thereby deny them what they were entitled to do. A better argument would perhaps have been that the common object was to deprive the processionists of their right of way and they were members of unlawful assembly under the fourth clause of the section and not the fifth as held.
The explanation attached to the section states that an assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly. This is an important explanation in the sense that it clarifies that it is not necessary that an assembly has to be unlawful right from the beginning. In practice it has been seen that such assemblies are generally so from the beginning but on many occasions lawful assemblies have also been seen to be turning unlawful.
A lawful assembly was going on a ‘parikrama’ when one of its members, against whom criminal charges were pending, was arrested by the police. The assembly became violent thereafter throwing stones etc. on the police and the arrested person himself stabbed the constable who was holding him. The Gujarat High Court held that by virtue of the explanation and the fifth clause of section 141, the assembly, though initially not unlawful, became so later on.
The Supreme Court in Moti Das v State, approved the principle that an assembly otherwise peaceful may become unlawful at a later stage without any prior concert amongst its members; but an illegal act on the part of some members of the assembly does not necessarily turn it into an unlawful assembly if there is no evidence of a common object between its members which does not fall under any of the five clauses of section 141 of the Code.