Section 120A

This article is written by Simran Mohanty, a student of Fairfield Institute of Management and Technology affiliated with Guru Gobind Singh Indraprastha University, New Delhi. The article discusses Section 149 of the Indian Penal Code, 1860 with the help of various judicial precedents.

This article has been published by Sneha Mahawar.

Introduction

Section 149 is provided in Chapter VIII of the Indian Penal Code,1860 which describes all the offences against public tranquillity. This Section, in particular, deals with the liability of every member of an unlawful assembly guilty of an offence committed in furtherance of a common object. Courts have construed that this provision creates joint liability or vicarious liability in an offence committed by members of an unlawful assembly.

Section 149 IPC in brief

When a person is attacked by a group of persons, it is difficult to establish the part played by each and every member during the commission of the offence. In such cases, all the accused persons can be charged with Section 149. The crux of this provision is that every member of an unlawful assembly sharing a common objective will be liable for the offence committed by the group. They would also be guilty if they knew that an offence was likely to be committed and actively participated in it. Say, for example, A, B and C grabbed Z to keep hold of him whereas D and E thrashed Z with bamboo sticks. Here even though A, B and C were not beating Z like D and E but they will all be liable under Section 149 of the Indian Penal Code, 1860 because all the accused had the common object of physically assaulting the victim.

Thus, this provision was enacted in order to maintain the tranquillity of the society and prevent the offenders who actively participate in the commission of an attack on innocent people by making them liable under Section 149 by the virtue of common object.

Origin of Section 149 IPC in the British Era

The history of Section 149 of the Indian Penal Code, 1860 can be traced back to Colonial times. The current Indian Penal Code, 1860 is based on the British era’s Draft Penal Code which was also called the Macaulay Code. The Draft Penal code did not have a provision like that of Section 149 but it did prescribe 5 years of imprisonment for rioting. When the Indian Penal Code of 1860 was enacted by the British, Section 149 was inserted to suppress any revolt by the people of India against the British.  In the 19th century, Britishers saw that the thirst for freedom was ignited among the Indians and they had started to unite against the oppressive British rule. This irked the Britishers and they subsequently used Section 149 actively to suppress the revolters and detain them so that the general public would be scared to raise their voice against the oppression. Thus it can be inferred that the original use of the said provision was oppressive in nature but after India gained independence, the courts have given strict interpretation to the statute so as to prevent any wrong convictions in the name of the common object.  

Nature of offence defined under Section 149 IPC

Initially, the Hon’ble Supreme Court was of the view that the aforesaid Section creates a specific and distinct offence. This was held in Lalji and Ors v. State Of U.P (1989).  But almost three decades later in Vinnubhai Ranchhodbhai Patel v. Rajivebhai Dudabhai Patel (2018), a larger bench of the Hon’ble Supreme Court of India held that this provision is not a separate offence rather it creates vicarious liability for all the members having a common object in an unlawful assembly to commit a crime. Many courts have observed that Section 149 has its foundation in constructive liability.

Ingredients of Section 149 IPC

To convict the person under Section 149 the following needs to be satisfied:

1. There must be an unlawful assembly.

2. Any member of the unlawful assembly must have committed an offence

3. The offence committed must be in furtherance of the assembly’s common objective or the members must have knowledge about the happening of the offence. 

According to the judgement passed by the Hon’ble Supreme Court in Vijay Pandurang Thakre v. State of Maharashtra (2017), for application of Section 149, there must be active participation of the person in the offence with the necessary criminal intention or share the common object of the unlawful assembly otherwise, the person cannot be held liable under the said Section.

Unlawful assembly under Section 141 IPC

Section 141 of the Indian Penal Code,1860 defines unlawful assembly which is an important element to establish joint liability of the members under Section 149 of the said Act. According to Section 141, if five or more persons have the following common object-

1. to overawe by criminal force

      (a) the Central Government, or the State Government, or the Legislature, or

      (b) any public servant in the exercise of lawful power;

2. to resist the execution of law or legal process;

3. to commit mischief, criminal trespass, or any other offence;

4. by criminal force—

     (a) to take or obtain possession of any property, or

     (b) to deprive any person of any incorporeal right, or

     (c) to enforce any right or supposed right;

5. Use criminal force to compel any person—

     (a) to do what he is not legally bound to do, or

     (b) to omit what he is legally entitled to do. 

Whether an overt act on the part of every member is necessary

In Yunis v. State of MP (2002), the Supreme Court of India held that even though there has been no overt act committed by one of the eight accused, still he was liable under Section 149 of IPC by virtue of being present at the place of commission of the crime. On the contrary, the same Court in the case of State of MP v. Mishrila (2003) stated that where the person is standing back without any participation in the commission of the offence, then merely his presence won’t attract Section 148. Hence, the court held that the person is not a member of the wrongful assembly and their conviction was impermissible.

Common object 

The Apex Court in the case of State Of Maharashtra v. Kashirao and Ors (2003) stated that “the meaning of the word ‘object’ means the purpose and, in order to make it ‘common’, it must be shared by all.” The Court further went on to say that a common object may be formed by express agreement mutually, but that is not necessary. By analysing the said judgement we can say that the members of the unlawful assembly should share the same purpose with the necessary criminal intention so as to constitute a common object.

Thus, the object is the goal that the members of the assembly set out to accomplish.

If all of the members have the same goal and the object is shared by all of the members, also they are in agreement on how to achieve it, then it will be construed as the common object of the unlawful assembly.

‘Common object’ with respect to Section 149 can be understood by breaking the provision into the following two parts-

Part A: ‘If an offence is committed by any member of an unlawful assembly in prosecution of        the common object of that assembly’ 

Part B: ‘The members of that assembly knew to be likely to be committed in prosecution of that object’

In the prosecution of the common object of that assembly

It means the act is done in order to carry out the common object of the unlawful assembly. In Satbir Singh v. State of Uttar Pradesh (2009), the Supreme Court strictly interpreted the expression ‘in prosecution of the common object’ as ‘‘in order to attain the common object’.

The aforesaid expression does not mean ‘during the prosecution of the common object of the assembly’ rather it means that the offence committed was immediately in nexus with the common object of the assembly.

In Vithal Bhimshah Koli v. State of Maharashtra (1982), the members of the unlawful assembly split themselves into groups to simultaneously attack the victim and even though they did not meet in one place before committing the crime, the attack seemed quite organised. Considering this fact the Supreme Court said that even if the common object was not developed at the initial stage, it may develop on the spot and will still be constituted as a common object. Whereas in Suratlal v. State of Madhya Pradesh (1982), one of the accused diverged from the initial plan of just thrashing the victim instead he pulled out a knife and stabbed the victim. The Court held that since the initial plan which was mutually decided by the members was to not cause any fatal injury to the victim and it was only that one accused who made a sudden decision of killing the victim. Therefore, the accused who killed the victim was liable and not the rest of the members since the common object was not to kill.

When there are many persons at a crime scene, it becomes difficult to make them liable for offence. Therefore, establishing a common object is very crucial for making the members of the assembly liable for an offence.

The members of that assembly knew to be likely to be committed in prosecution of that object

The word ‘knew’ in the aforesaid expression implies something more than “possibility” and cannot include within its ambit that the accused ‘might’ have known about the commission of the act. An offence committed to achieving the common object would generally be the offence that the members of the assembly knew was likely to be committed. This was observed by the Court in Gangadhar Behera v. State of Orissa (2002). 

In  Rajendra Shantaram Todankar v. State of Maharashtra (2003), the Court stated that when an act is committed and the members of the assembly had knowledge of the possibility of offence in the prosecution of the common object, the members will be vicariously liable under Section 149. The knowledge of the commission of the offence though difficult can be inferred from the circumstances such as the background of the incident, the motive, the nature of the assembly and arms carried by the members of the assembly, their common object, and the behaviour of the members soon before, at or after the actual commission of the crime.

Difference between part A and part B of Section 149 IPC

In the case of Chanda and ors v. State of Uttar Pradesh (2003)  the Supreme Court differentiated both the parts of the Section.

The first part of the Section states that the offence must be committed with a view to accomplishing the common object. For the offence to fall under the first part, the offence must have an immediate or direct connection with the common object of the unlawful assembly of which the accused was a member.

Whereas for the offence to fall under the second part the court held that the offence should be such that the members knew it was likely to be committed. 

Identification of the common object

In Vinnubhai Ranchhodbhai Patel v. Rajivebhai Dudabhai Patel (2018) the Court said that the identification of the common object can be derived by assessing the mental state of the members of the unlawful assembly. There is no hard and fast rule but most likely the mental state can be deduced by the circumstantial evidence and by judging the nature of the assembly.

For example, if a group of people gather in a public place late at night with dangerous weapons and attack someone, then any member of the unlawful assembly would be a fool if he did not realise that their actions can cause fatal injuries.

Punishment under Section 149 IPC

As discussed earlier in the Article, Section 149 does not define a distinct offence. Therefore punishment under Section 149 would be the same as the offence committed. Even for the purpose of classifying the offence as bailable/non-bailable or cognizant/non-cognizant, it will be in accordance with the offence committed For example, if the offence committed by the unlawful assembly is rioting which is punishable under Section 147 of the Indian Penal Code, 1860 then all the members of the unlawful assembly in prosecution of the common object responsible for rioting will be punished with imprisonment which may extend to two years or fine or both. 

Difference between Section 149 and Section 34 IPC

The parameter of distinction between Section 34 and Section 149 of the Indian Penal Code, 1860 can be inferred by the plain reading of both sections. Where in Section 149 the liability is based on ‘common object’, in Section 34 the liability is based on ‘common intention’. In order to attract Section 34 of the Indian Penal Code, 1860  several persons must do an act as well as have the intention of doing the said act. The provision won’t apply where several persons intend to do an act but some of them diverge from the original object and commit an entirely different act. In such a case section 149 may be applied by carefully scrutinising the facts of the case.

Recently, the Apex Court has explained the difference between both of the terms in Rohtas v. State of Haryana (2020). In this case, the victim was on his way to an agricultural plot, when the appellant with three other accused persons started inflicting blows, on the victim’s body using axes causing serious injuries to his legs, hand, and head. Meanwhile, another group of persons also started thrashing the victim and even threatened to kill him. The Court observed that even though both the sections create vicarious liability on the members of the group, there are some crucial differences between the two of them. While Section 34 requires active participation and a prior meeting of minds, liability under Section 149 is created by virtue of membership in the unlawful assembly. The Court further said that ‘common intention’ is usually inferred indirectly from the act of the members.

Below is the summarised difference between the two provisions: 

Section 34 IPCSection 149 IPC
Common intention is not defined anywhere in the statute.For the purpose of Section 149 common object is defined under Section 141 of the IPC
This section is under Chapter II of the IPC which deals with general exceptions.This section comes under Chapter VIII of the IPC which deals with offences against public tranquillity.
There is no requirement for the minimum number of persons to share a common intention.Section 149 requires that there should be a minimum of 5 or more persons.
The basis of liability is common intention.The basis of liability is common object.
Active participation of the members in the commission or the planning of the act must be there.The Common object can be established if the persons are members of an unlawful assembly.

Section 302 read with Section 149 IPC

Section 302 of the Indian Penal Code describes the punishment for murder. When a group of people has a common object to kill another person, they can be charged under Section 302 read with Section 149. The issue raised in the case of   Nanak Chand v. State of Punjab (1955) before the Supreme Court of India was whether there could be a conviction for the offence under Section 302 simplicitor when the charge was for the offence under Section 302 read with Section 149 of IPC. It was held that since there when there is no separate charge for the offence under section 302 only and the charge was made under Section 302 read with 149 of the IPC, the conviction for the offence under Section 302 would not be maintainable. 

The constitutional bench in Willie Slaney v. State of Madhya Pradesh (1955) clearly explained regarding when an accused can be convicted under Section 302 simpliciter when the initial charge was under Section 302 read with 149 of the IPC. The bench said that even though the charge is under Section 302 read with Section 149 but the facts state that there has been a fatality due to the act committed by a particular accused. During trial the evidence confirms that the particular accused’s act was responsible for the death of the victim, then he could be convicted under section 302 separately even if there was no separate charge against him.

Recently, on 18 January 2022 in the case of Mohd. Shoaib @ Chhutwa v. State (2022) the Delhi High Court said that there needs to be a clear finding with regards to the nature of the unlawful common object to convict an accused under Section 302 read with Section 149 of the IPC and if there is no such finding, then just the presence of accused would not be sufficient to prove the common object. to. Thus, conviction under Section 149 read with Section 302 cannot be based on vague evidence and general allegations. 

Therefore, by analysing the above judgements it can be concluded where a murder has been committed by any member of the unlawful assembly, the rest of the members cannot be charged under Section 302. Section 302 read with Section 149 shall be applicable when the common object of the assembly was to kill the victim.

Misuse of Section 149 IPC

Whenever there is the presence of more than 5 persons at a crime scene, the prosecution mechanically invokes Section 149 of the Indian Penal Code, 1860 read with other provisions of the IPC. This has led to abuse and misuse of the statute. In one of the cases, a person was convicted under Section 149 for murdering a person. Later on in the appeal, he was acquitted because he had just revealed the location of the victim to the mob who killed the victim. If the Court had not analysed the facts carefully then an innocent might have served in Jail for an offence he did not commit. This section was inserted by the Britishers in the pre-independence era and therefore did not take into account that villagers often carry agricultural equipments like axes with them for work and sometimes it so happens when an incident occurs in a village, they get charged under Section 149 because they were armed. Therefore, unfair to them because of infringement of their right to life and liberty under Article 21 of the Indian Constitution.  

Recently the Karnataka High Court in the case of Santhu @ Santhosh Poojary v. State Of Karnataka (2020) said that “It is high time for the investigating agency to conduct a proper investigation whenever the provisions of Section 149 are invoked along with the other provisions of IPC to ensure that there should not be any violation of fundamental rights guaranteed to the citizens under Articles 14, 19 and 21 of the Constitution of India and also to ensure that innocent people should not be implicated. While invoking the provisions of Section 149 of IPC, the investigating agency shall confirm after investigation as to whether such persons really committed an offence along with the other co-accused, if any. Otherwise, the rival/jealous/motivated/interested parties are eager to implicate innocent people, sometimes with the influence of local politicians also.”  The court further went on to say that the Court should act as societal parents and analyse the evidence properly before convicting anyone while dealing with prosecution under Section 302 read with 149 of the IPC. When one of the accused has committed the alleged offence then the other members of the unlawful assembly should not unnecessarily be punished with imprisonment for life, without there being any contribution of other members with the common object besides, such members can be punished separately for minor offences under Sections 143, 147,148,323,341 and 504 etc. of Indian Penal Code, 1860.  

Relevant case laws with respect to Section 149 IPC

Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel (2018)

Facts

On 11.07.1992,  an incident occurred in the village of Nana Ankadia leaving three persons dead and five persons injured. The charge sheet was filed against 15 accused.

Issue raised

The issue raised before the Hon’ble Supreme Court was in relation to the scope of Section 149 of the IPC

Held

The Hon’ble Supreme Court observed that for examining the liability of the accused under section 149, first, the Courts need to analyse the provision. The court stated that there are two components that need to be kept in mind by the prosecution and the courts for analysing Section 149. The components are as follows

  1. The amplitude and the vicarious liability created under Section 149; and
  2. the facts which are required to be proved to hold an accused vicariously liable for an offence.

Mahendra Singh v. State of Madhya Pradesh (2022)

Facts

In this case, the complainants were attacked with lathi and farsa by 19-20 persons on their way back from a village. The attackers abused and assaulted them. The High court upheld the Trial Court’s conviction under section Section 325 read with Section 149 of IPC. The appellant then appealed to the SC that out of the 20 accused persons in the charge sheet, 17 were acquitted and the 3 accused were convicted under Section 325 read with Section 149.

Issue raised

Whether the accused was rightly convicted under Section 149 even though the charges were formed against less than 5 persons?

Held 

The bench quashed the order of the High Court that convicted the accused under Section 325 read with Section 149 and gave the reasoning that for conviction under Section 149 there must be 5 or more persons but it is not necessary that five or more persons should be brought before the court and convicted. Thus, the charge under Section 149 would be maintainable even though it was against less than 5 persons and other accused could not be identified but in total, they should be more than 5 persons. However in the present case, there were no unidentified accused and only three persons were convicted under section 149, so the charge cannot be maintainable.

Taijuddin v. State of Assam and other (2021)

Facts 

In this case, the victim was attacked in his own house by a mob due to a land dispute armed with lathis, spears, daggers, etc. The victim ran and tried to hide in someone else’s home to save himself from the mob but was unsuccessful and eventually killed by the mob. One of the accused appealed against his conviction in the Apex Court.

Issue raised

If a person reveals the location of the victim to the killers, will he be vicariously liable under Section 149 of the Indian Penal Code, 1860?

Held

The Supreme Court of India held that a person cannot be held liable under Section 149 merely because he revealed the hide of the victim who was subsequently killed. The Court observed that it cannot be presumed that the said person shares the common object with other accused who killed the victim. The court further went on to say that The Court must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Its obvious that one person cannot be brave enough to conceal someones hide out from a  group of armed persons Hence, Taijuddin was acquitted.

Conclusion

The provision creates vicarious liability for the members of the unlawful assembly in prosecution of a common object which means that every person would be held liable irrespective of the fact whether he has caused injury to the victim or not because they were a member of an unlawful assembly and an offence was committed according to their common object. This provision is very crucial in making members of an unlawful assembly liable for the commission of an offence but sometimes there have been cases where innocent people have been charged under this Section. Owing to the language of the statute, the prosecution sometimes invokes Section 149 as a procedural law diverging from its substantive nature. Therefore, it is not justified for the individuals in an assembly who were mere spectators in the offence to be equally punishable with the accused who committed serious crimes. This has been recently addressed by the courts and they interpreted the provision in a strict manner so as to prevent the conviction of any innocent.   

Frequently Asked Questions

  1. If some members diverged from the original common object and committed an aggravated act, then will all the members be liable for the act?

No, all members won’t be liable for the aggravated act of some members who diverged from the original common object.

  1. Can a person be convicted under section 149 if he got engaged in a free fight?

A person cannot be convicted under section 149 in case of a free fight.

  1. Offence under Section 149 is triable under which court?

It will be triable by the court in which the offence committed by the unlawful assembly will be triable.

  1. Is Section 149 compoundable or non-compoundable?

It is non-compoundable.

References 


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