Definition
Assembly of five or more persons with a common unlawful object.
An assembly of five or more persons sharing a common object to commit an offence or to resist the execution of law — every member is liable for acts done in prosecution of that common object.
Statutory Definition
BNS 2023, Section 189 (formerly IPC Section 141).
Etymology & Origin
From Old French 'assemble' (to bring together — from Latin 'assimulare', to gather like things together — 'ad', to, and 'simul', together). An 'assembly' is a gathering. 'Unlawful' (Old English 'unlaga', without law) qualifies the assembly as one that the law regards as a threat to public order. Together: a gathering that the law prohibits because of its dangerous collective purpose.
Full Legal Analysis
An unlawful assembly is an assembly of five or more persons if the common object of the persons composing that assembly is one of five specified objects listed in Section 189 BNS (formerly Section 141 IPC): (1) to overawe, by criminal force or show of criminal force, the Central or a State Government or Parliament or Legislature, or any public servant in the exercise of their lawful power; (2) to resist the execution of any law or legal process; (3) to commit any mischief, criminal trespass, or other offence; (4) by means of criminal force or show of force to any person to take or obtain possession of any property, or to deprive any person of enjoyment of a right of way or easement; or (5) by means of criminal force or show of force to compel any person to do what they are not legally bound to do, or to omit what they are legally entitled to do.
Significance of 'common object': the common object must be shared by the members of the assembly — it is an object that unites them. It is distinguished from 'common intention' (Section 61 BNS) in that common object can develop and be shared without any prior meeting of minds — the members may gather separately and yet share the same unlawful objective. Section 190 BNS (formerly Section 149 IPC) — the key provision — makes every member of an unlawful assembly guilty of any offence committed by any member in prosecution of the common object, or which could reasonably be foreseen would be committed in prosecution of that object. This creates joint criminal liability for all members, even those who did not personally commit the offence.
The Supreme Court laid down the principles for establishing membership of an unlawful assembly where a large crowd is involved. The Court held that: (1) the court must determine the common object of the assembly; (2) each accused's membership of the assembly must be established separately — mere presence in a crowd is not membership; (3) the accused must have shared the common object; (4) the offence must have been committed in prosecution of that common object, or one that the members knew was likely to be committed. The Court emphasised that Section 149 IPC (Section 190 BNS) creates constructive liability — even passive members who did not strike a blow are liable for the act of those who did, if the common object comprehended the act.
Distinction from unlawful assembly — mere membership vs active participation: joining an assembly that subsequently becomes unlawful (by developing a common object to commit an offence) does not make the earlier, lawful members guilty — they must be shown to have continued as members after the assembly became unlawful, knowing its nature. A person who joined a peaceful procession that was subsequently hijacked by violent elements is not automatically a member of an unlawful assembly — their continued participation after the assembly became unlawful must be shown.
Command to disperse — BNSS Section 185 (formerly CrPC Section 129): an Executive Magistrate may, by proclamation, command an unlawful assembly to disperse. If the assembly does not disperse, the Magistrate may use police or armed forces to disperse it, including with force if necessary. The police have the power to disperse a riot under the BNSS without a Magistrate's order in urgent circumstances.
For advocates, unlawful assembly cases require: (1) establishing or challenging the existence of a common object; (2) establishing or challenging each accused's membership — who was present and when did they arrive/leave; (3) applying or challenging the constructive liability under Section 190 BNS — particularly where some accused are passive members; and (4) bail applications — rioting and unlawful assembly with armed force are non-bailable in some categories.
This Term in Indian Statutes
Bharatiya Nyaya Sanhita, 2023, 2023
"An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is— (First) To overawe by criminal force, or show of criminal force, the Central Government or any State Government or Parliament or the Legislature of any State; (Second) To resist the execution of any law, or of any legal process; (Third) To commit any mischief or criminal trespass, or other offence."
Masalti: membership must be individually established; passive member equally liable under Section 190 BNS; common object vs common intention; BNSS Section 185 Magistrate's dispersal power; unlawful assembly becoming unlawful mid-process
