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section 149 ipc

An assembly of 5 or more persons can be said to be unlawful assembly if the common object of that assembly is : To overawe Government by criminal force.

To resist the execution of law or legal process.

To commit an offence.

forcible possession or dispossession of any property; or

To compel any person to do illegal acts. (vide section 141 IPC) the object of section 149 is to prevent resort to criminal force by 5 or more persons to do any of the acts set out in this section. In order for an assembly to become unlawful assembly It needs to have 5 essential points :- 1. assembly must consist of 5 or more persons ( in accordance with section 141) 2. An assembly which is not unlawful in its inception does not become an unlawful assembly because of its refusal to obey to be dispersed. Moreover , it does not become unlawful by reason of its lawful acts exciting others to do unlawful act. 3. At the same time , an assembly which is lawful in its inception may become unlawful by subsequent act of its members . However, in Moti Das v. State of Bihar AIR 1954 SC 657 - it was held in its peculiar facts and circumstances of the case that , an illegal act of one or two members not , acquiesced in by others does not change the character of assembly from lawful to unlawful. 4. When two factions fight the members donot become members of unlawful assembly because they have no common object . An offence under section 141 cannot be said to have been committed when two opposite factions commit a riot and a fight , as it cannot be said that both parties shared any common object. 5.Section 149 Is an exception to the general principle of criminal law in the sense that a person can be convicted and sentenced on proof of his being a member of unlawful assembly sharing a common object. Notwithstanding whether he participated in the commission of the crime or not. IN order to be punished by the aid of section 149 or essential elements of 149 are :- 1. commission of offence by any member of unlawful assembly. 2. such offence must have been committed in prosecution of common object of the assembly . 3. Offence must be such as the members of the assembly knew to be likely committed in prosecution of common object. 4. There must be nexus between common object and offence committed. 5. It is not necessary to prove that each an everyone of the members had indulged in overt acts. The presence of the accused as a part of unlawful assembly and sharing of a common object is sufficient for conviction. 6. There should be proximity of time and place , both between the members and criminal acts of the members . However, it is not necessary that all members must continue together or help one another at the time of commission of a crime. 7. the words in prosecution of common object donot mean during prosecution of a common object of the assembly. Thus , if an unlawful assembly goes with a common object of theft and unknown to others , a member rapes someone , the offence of rape cannot be attributed to all 5. Similarly , If criminal act was fresh and independent transaction springing wholly from the mind of the doer , the others are not liable , merely because when it was done they were intending to be partakers with the doer in different criminal act. This section will not apply where several person intend to commit an act an one of them wholly independently commits another different act not envisaged by rest of the members (provided its not a probably consequence)

Mere presence cannot make a person liable for offences committed by unlawful assembly :-

Supreme Court of India

Madan Singh vs State Of Bihar on 2 April, 2004

The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he shared the same or was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless the commission of an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means always necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just j