Unlawful Assembly (Sec 141, 149 IPC / Sec 187-188 of BNS)

A civilized society cannot exist without peace. To maintain

public peace and order in India, the Indian Penal Code
criminalizes the formation of unlawful assembly. Section 141
to section 145 of the IPC deals with the provisions related to
unlawful assembly. (Section 187 and 188 in BNS 2023)

A Bit of Background

In ancient times, the mere gathering or assembly of people was

considered a threat to society and thus illegal. However, with
the development of a democratic society, the assembly of
people became a public necessity.

Any assembly or gathering cannot be punished unless it is for

an unlawful purpose. Therefore, defining the objects that make
an assembly unlawful becomes necessary. The main reason
for criminalising unlawful assembly is to maintain public
peace and order.

To prevent people from committing crimes in groups or by

making an assembly, the Indian Penal Code declares assembly
for unlawful purposes as unlawful assembly and provides
punishment for it.
What Is Unlawful Assembly?

Unlawful assembly is defined under section 141 of the IPC.

According to this section, any assembly is unlawful if its
common objective is to:

1. Overpower the government (central as well as state

government), the legislature (central as well as state
legislature) or any public servant in the exercise of
lawful power by using criminal force.
2. Resist or oppose the application of the law or any legal
process.
3. Commit mischief, criminal trespass or any other
offence.
4. Obtain possession of any property or deprive any
person of their incorporated right by using criminal
force.
5. To force someone to commit a crime or any said illegal
act.

However, for an assembly to be referred to as an unlawful

assembly, there must be five or more persons in the assembly,
and they must constitute a common object. This means that all
the persons of the assembly must be aware of the object of the
formation of such assembly. The mere presence of any person
does not make that person a member of the unlawful
assembly.
An assembly that is lawful at its commencement/beginning
can develop into an unlawful assembly (by subsequent acts of
the members).

Punishment for Being a Member of an Unlawful Assembly

Section 142 of the IPC provides that if a person continues to be

in an unlawful assembly after knowing it is illegal, he is
considered a member of that unlawful assembly.

Members of the unlawful assembly must be liable for the

punishment provided under section 143 of the Indian Penal
Code. Section 143 of the IPC states that members of the
unlawful assembly must be punished with imprisonment of
not more than six months, a fine, or both.

Punishment for Joining Unlawful Assembly Armed With

Deadly Weapons

Section 144 of the IPC provides punishment for being a

member of an unlawful assembly that is armed with weapons
that can likely cause death. This section is an aggravated form
of section 143 of the IPC.

According to section 144 of the IPC, members of an unlawful

assembly armed with any deadly weapon or weapon likely to
cause death are liable to punishment with imprisonment of
not more than two years, a fine, or both.
Punishment for Joining or Being a Part of Unlawful
Assembly Knowing It Has Been Dispersed

Section 145 of the Indian Penal Code provides punishment for

not obeying the lawful order promulgated by a public servant.
According to this section, any person who either joins or
continues to stay in an unlawful assembly after knowing that
an order to disperse the assembly has been given – is liable for
punishment of imprisonment for not more than two years, a
fine, or both.

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?

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:

1. To overawe Government by criminal force.

2. To resist the execution of law or legal process.

3. To commit an offence.

4. forcible possession or dispossession of any property;

or

5. 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;

1. Obstruction, annoyance or injury to any person

lawfully employed.

2. 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.