In this article, Kanishk Khullar discusses section 144, laws punishing unlawful assembly under the Indian Penal Code.
In India we often hear in news about the applicability of Section 144 at different parts of the country in case of riots or strikes or vase public processions. When and why the government tends to invoke this section? Does it infringe any fundamental rights? Who has the power to apply section 144? And who all are liable to be punished as an unlawful assembly? All these questions will be answered in this article.
Right to Assemble
Article 19 (1)(B) of the Constitution of India 1949, lay down that ‘All citizens shall have right to assemble peaceably and without arms. That means citizens of India has been given freedom to assemble and organize a public gathering or even processions on their own will. But this right to assemble is subject to reasonable restriction by the state in the interest of sovereignty and integrity of India or public order under clause 3 of Article 19 of the Constitution of India 1949. Thus, an appropriate authority can prohibit holding up of a public meeting, in a case where they are of the opinion that doing so is necessary for maintaining public peace and tranquillity.
Dispersal of Unlawful Assembly
In Babulal Parate v. State of Maharashtra[1], the Hon’ble Supreme Court while observing that right ‘to hold public meeting’ and to ‘take out public processions’ vests under Article 19 (1) (b) of the Constitution of India, stated that:
“Public order has to be maintained in advance in order to ensure it and, therefore, it is competent to a legislature to pass a law permitting an appropriate authority to take anticipatory action or place anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order.”
Hence, to put reasonable restriction over the freedom to assemble granted under article 19 (1)(B), sections 129 and 130 of the Code of Criminal Procedure, 1860 talks about the dispersal of assemblies.
According to Section 129 of Cr.P.C any unlawful assembly or any assembly of five or more persons likely to cause a breach of public peace may be dispersed by command of any Executive Magistrate or an officer incharge of a police station or a police officer, not below the rank of a sub-inspector, by use of civil force.
According to Section 130 (1) of Cr.P.C, If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.
After going through above two sections i.e. 129 and 130 of Cr.P.C one obvious question which arises to the mind of the reader that:
What is an Unlawful Assembly?
An assembly may turn unruly and which may cause injury to person, property or public order. Such an unruly assembly is termed as ‘Unlawful Assembly.’ In Moti Das v. State of Bihar,[2]it was held that ‘an assembly, which was lawful to start with, became unlawful the moment one of the members called on the others to assault the victim and his associates, and in response to his invitation all the members of the assembly started to chase the victim while he was running.’
The term ‘Unlawful Assembly’ has been defined under section 141 of the Indian Penal Code, 1860 as an assembly of five or more persons having a common object to perform an omission or offence.
Essentials to constitute an Unlawful Assembly[3]
To constitute an unlawful assembly the following 3 conditions must co-exist:-
- There must be an assembly of five persons.
- The assembly must have a common object and
- The common object must be to commit one of the five illegal objects specified in the section.
1) There must be an assembly of five persons
The Supreme Court of India has upheld invariably in a number of cases such as Dharam Pal Singh v. State of Uttar Pradesh[4] that;
“Where only five named persons have been charged for constituting an unlawful assembly, and one or more of them are acquitted, the remaining accused (who are less than five) cannot be convicted as members of unlawful assembly, unless it is proved that the unlawful assembly, besides convicted persons consisted of some other persons as well who were not identified and so could not be named.”
2) The assembly must have a common object
The law does not declare a mere assemblage of men, however large it is, as illegal unless it is inspired by an illegal common object. In the case of Sheikh Yusuf v. Emperor,[5]the court said that; “the word ‘object’ means the purpose or design to do a thing aimed at and that the object must be ‘common’ to the persons who comprise the assembly.” A Common Object is where all or minimum five member of the assembly possesses and shares one object.
3) The common object must be to commit one of the five illegal objects specified in the section
As stated earlier, an assembly of five or more persons is designated as an unlawful assembly, if the common object of the persons composing that assembly is any one of the following five objects declared illegal under section 141, IPC:
- 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.
i) To overawe government by criminal force: ‘Overawe’ means to create fear in mind of another person. That is when a public procession tends to overawe government by the use of force, like what the Stone Pelters do at parts of Kashmir to protest against the government, such an assembly is termed as an unlawful assembly.
ii) To resist the execution of law or legal process: Resistance by an assembly to a legal process or execution of law, for example, executing a court’s judgment or order comes under execution of law, Hence, restraining the arrest in case of Baba Ram Rahim in Haryana was an illegal act by people and government decided for dispersion of unlawful assembly under section 144 of the Code of Criminal Procedure, 1973.
iii) To commit an offence: Where an assembly of 5 or more persons having a common object of performing an act which is prohibited by law or forms an offence under Indian Penal Code or other special or Local Laws, such an assembly would be an unlawful assembly.
iv) Forcible possession or dispossession of any property: Where a criminal force is used by an assembly to deprive a person of enjoyment of the right to way or right to use of water or any other incorporeal right that the person is enjoying and in possession of. Or to obtain possession of any property or to impose such rights, the above acts are prohibited under clause 4 of section 141 of the Indian Penal Code, 1860.
v) To compel any person to do illegal acts: if assembly by using criminal force on others compel them to perform an illegal act than that assembly would be an unlawful assembly.
What is Section 144 of the Code of Criminal Procedure?
Section 144 gives the “Power to issue order in urgent cases of nuisance or apprehended danger”.
This section gives power to a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the state government in this behalf to issue orders in the case where he has sufficient ground to take action and for immediate prevention or speedy remedy is desirable against the apprehended danger.
The object of section 144 is to pass an immediate order in advance to prevent any apprehended danger or to immediately give a remedy in case of emergency. Preservation of peace and tranquillity in society is the prime purpose of the state government; hence, the government specially empowers executive magistrates under 144 to take immediate action in case of emergency and to provide an immediate remedy in the following three situations mention under clause 1 of section 144 of the Code of Criminal Procedure:
To Prevent;
- Obstruction, annoyance or injury to any person lawfully employed.
- A danger to human life, health or safety, or
- Disturbance of the public tranquillity or a riot or an affray.
Prohibition of the right to assemble is not absolute
In the case of Dr. Anindya Gopal Mitra v. State,[6] it was held that the amount of power vested under the magistrate under section 144 is to suspend the exercise of the right on particular occasions and not to prohibit it absolutely. In this case, police commissioner refused to give permission to a political party (BJP), to hold public meetings by prohibiting it under section 144 of the Cr.P.C., the Hon’ble Calcutta High Court; quashed the order passed by the police commissioner and said that ‘the holding of meetings could not be totally prohibited, but necessary restrictions may be imposed and preventive measures may be taken.’
Duration of applicability of section 144
According to clause 4 of section 144 of the Cr.P.C. ‘No order under this section shall remain in force for more than two months from the date of issuance, provided the state government, if of the opinion that it is necessary to do in case of emergency to prevent danger to human life, health or safety or to prevent a riot, than the state government may order the magistrate to make order to extend the period of applicability of section 144, not more than the period of six months.
As this section confers full power to magistrate to take certain action to apprehend danger in case of emergency, the Magistrate should apply his mind to see whether the matter is of such nature which requires an order under this section, as otherwise a matter to disperse unlawful assembly creating public nuisance can be dealt with under section 133 of Cr.P.C
Difference between section 144 and section 133 of the Cr.P.C
Cases of ordinary public nuisance are covered under section 133; while, cases of urgency are covered by section 144. Further, under the latter, the very urgency of the case demands the laying aside of the usual formalities and preliminaries to the making of an order. While, under section 133, the Magistrate acts on the report of a police officer or other information; there is no such requirement under section 144.[7]
Who all are liable to be penalised for being a Part of an unlawful assembly?
Section 142 of Indian Penal Code
Whoever, being aware of facts that makes any assembly an unlawful assembly, intentionally joins that assembly or continues in it, is said to be the member of that unlawful assembly.
In the above section, to become a member of an unlawful assembly there should be a presence of knowledge and intention on part of the person joining such assembly.
Punishment for Unlawful Assembly
i) Under Section 143 of I.P.C. whoever is a member 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.
ii) Under Section 144 of I.P.C. whoever joins unlawful assembly armed with a deadly weapon which is likely to cause death; shall be punished with imprisonment for two years, or fine or both.
iii) Under Section 145 of I.P.C. whoever joins or continue to be in unlawful assembly, knowing it has been commanded to disperse, shall be punished with imprisonment for 2 years, or fine, or both.
iv) Under Section 149 of I.P.C. where an assembly commits an offence than every member of that unlawful assembly, who knew such offence is likely to be committed, will be guilty of that offence. And be punished for the term same as for the offence.
Conclusion
- Hence, section 144 is only to be used in an emergency situation to prevent any riot or to maintain public order or otherwise public nuisance by an unlawful assembly is dealt under section 133 of the Code of Criminal Procedure, 1973.
- On the other hand ‘knowingly’ being a part of an unlawful assembly’s object, would make a person equally liable for punishment irrespective of his role in the assembly.
- Thus, Sections 144 and 133 lay down reasonable restrictions on Freedom to assemble, guaranteed under article 19 Clause 1(b) of the Constitution of India and do not infringe any fundamental rights of any citizens, until or unless applied arbitrarily.
[1] AIR 1961 SC 884.
[2] AIR 1954 SC 657.
[3] Guar, K.D., Textbook Indian Penal Code, 5th Edn., (Pune)2013, p.246.
[4] AIR 1975 SC 1917.
[5] AIR 1946 Pat 127.
[6] 1993 CrLJ 2096 (cal).
[7] Dr. Jain, A.K., Criminal Procedure Code, 2nd Edn., (Delhi) 2013-14, p.115.
