Source: Supreme Court 

Why in News?

A bench of Justice Ujjal Bhuyan and Justice Abhay S. Oka held that for the purpose of conviction under Section 149 of the Indian Penal Code, 1860 (IPC) which is now Section 188 of  Bharatiya Nyaya Sanhita, 2023 (BNS), no overt act is required, the presence of accused as a part of unlawful assembly is sufficient for conviction.          

• The Supreme Court held this in the case of Nitya Nand v. State of Uttar Pradesh & Anr. 

What is the Background of Nitya Nand v. State of Uttar Pradesh & Anr Case? 

• The informant, Sarwan Kumar had lodged a First Information Report (FIR) before the police station where he stated that on 8th September 1992 when he and his father (Satya Narain) as well as uncle as per their daily routine came to Ganga ghat after easing themselves for taking bath the incident occurred.  
• Shree Dev and his four sons Munna Lal, Raju, Nitya Nand and Uchchav @ Pappu armed with kanta, knives and country made pistol confronted Satya Narain. 
• The accused persons caught hold of Satya Narain and started assaulting him. 
• On hearing the cries of his father, the informant, Sarwan Kumar and others came to save him. 
• It was then that Nitya Nand fired from his country made pistol whereafter all the accused persons made their escape. 
• When the informant reached the spot Satya Narain (father of informant) had already succumbed to injuries. 
• On the completion of investigation charges were framed against the accused persons under Section 147 and Section 302 read with Section 149 of Indian Penal Code, 1860 (IPC). 
• The Trial Court convicted the accused Shree Dev and also persons Munna Lal, Raju and Uchchav @ Pappu under Section 148 and Section 302 read with Section 149 of IPC. 
• An appeal was filed before the High Court. The High Court, while upholding the conviction dismissed the appeal. 
• Consequently, an appeal was filed before the Supreme Court against the conviction of Allahabad High Court. 

What were the Court’s Observations? 

• The question for consideration before the Court was whether the prosecution could establish the culpability of the appellant in murder of Satya Narain beyond reasonable doubt. 
• The Appellant was charged by virtue of Section 148 and Section 149 of IPC. 
• Section 149 of IPC lays down that every member of unlawful assembly shall be guilty of the offence committed in prosecution of common object. 
  • Section 149 of IPC provides that  if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the said assembly; is guilty of that offence.  
• Thus, if it is a case of murder each member of unlawful assembly would be guilty of committing the offence under Section 302 of IPC. 
• Thus, the question which is required to be answered is whether the accused was a member of unlawful assembly and not whether he actually took part in the crime or not. 
• The Court held that as was held in Yunis @ Kariya v. State of M.P. (2002), no overt act is required to be imputed to a particular person when the charge is under Section 149 of IPC. 
• The presence of the accused as a part of the unlawful assembly is sufficient for conviction. 
• Hence, the Supreme Court held that the trial Court was justified in confirming the conviction under Section 302 read with Section 149 of IPC.
  

What is Unlawful Assembly under Bharatiya Nyaya Sanhita, 2023 (BNS)? 

• Section 189 (1) of BNS lays down what is unlawful assembly. It is to be noted that this is provided under Section 141 of IPC.  
• The most important ingredient for unlawful assembly is that there should be more than 5 persons. 
• The common object of the persons composing the assembly is: 
  • To overawe by criminal force, or show of criminal force, 
    • The Central Government, or 
    • Any State Government, or 
    • Parliament, or 
    • Legislature of any State, or 
    • any public servant in the exercise of the lawful power of such public servant 
  • To resist the execution of any law, or of any legal process, or 
  • To commit 
    • Mischief, or 
    • Criminal trespass, or 
    • Other offence 
  • 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 
  • 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 Explanation to Section 189 provides that an assembly which is not unlawful when it assembled may subsequently become an unlawful assembly.  
• The Rest of the provisions are an amalgamation of other provisions under IPC. A comparative analysis of these provisions is as follows: 

What is Vicarious Liability Arising out of Unlawful Assembly? 

• Section 189 of BNS lays down vicarious liability with respect to every member of unlawful assembly. 
• Every member of unlawful assembly shall be liable for the offence committed by any member of the unlawful assembly if: 
  • Offence committed in prosecution of common object of the assembly. 
  • Or such as the members of the assembly knew to be likely committed in prosecution of common object 
• This was earlier provided for under Section 149 of IPC.

What are the Case Laws on Liability under Section 149 of IPC? 

• Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel (2018): 
  • It is not necessary for liability under Section 149 of IPC that each of the persons should have inflicted injuries. 
  • The presence of the accused in that assembly is sufficient to render him vicariously liable under Section 149 of IPC. 
  • When a large number of people gather together (assemble) and commit an offence, it is possible that only some of the members of the assembly commit the crucial act which renders the transaction an offence and the remaining members do not take part in that “crucial act”. 
  • It is in those situations, the legislature thought it fit as a matter of legislative policy to press into service the concept of vicarious liability for the crime. Section 149 IPC is one such provision 
  • It is a provision conceived in the larger public interest to maintain the tranquility of the society and prevent wrongdoers (who actively collaborate or assist the commission of offences) claiming impunity on the ground that their activity as members of the unlawful assembly is limited. 
• Krishnappa v. State of Karnataka (2012):  
  • Section 149 IPC creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. 
  • The factum of causing injury or not causing injury would not be relevant, where the accused is sought to be roped in with the aid of Section 149 IPC. 
  • The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not.