‘Unlawful assembly’ as an offence under IPC, was a colonel weapon of oppression invented during the British rule to suppress freedom movement and still remains in the statute book. Landmark judgment of the Karnataka High Court.

Santu @ Santosh Poojary vs State of Karnataka. Criminal Appeal 880/2015 and connected appeals decided on 15 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/354638/1/CRLA880-15-15-12-2020.pdf

Relevant paragraphs: 41. By a careful reading of the provisions of Section 149 of IPC, it clearly depicts that every member of unlawful assembly guilty of offence committed in prosecution of common object – 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 the committing of that offence, is a member of the same assembly, is guilty of that offence. This provision appears under the heading “offences against public tranquility” in the IPC. The present day Indian Penal Code derives its genesis from the Draft Penal Code for India commonly called the Macaulay Code. Those were the times during the middle of the 19th century when Indian opposition to the British rule was taking its baby steps. As the opposition became stronger, the British rulers felt an emergent need for devising a deterrent penalty which could contain the opposition at the nascent stage. In an attempt to do so, the concept of vicarious liability was introduced, unlike the modern day section 149, the sentence was restricted. With the passage of time, as the freedom movement gained momentum, the erstwhile British Government needed sterner punishments and deterrents to suppress the struggles with “iron hand”. The year 1857 witnessed the first organized attempt at independence – the Indian Mutiny of 1857. The startled British governance brought in section 149 exactly in the fashion as it stands in the statute book today. The provisions of Section 149  was enacted as a tool to curtail the freedom movement with an “iron hand” and has continued in the statute book since then. Though India got independence in the year 1947, still the said provision continued in the IPC even today.

42. The scrutiny of the provisions of section 149 on the touchstone of fundamental rights has become the need of the hour because of the alarming misuse of the said section by the prosecuting agencies. The Investigating Officers sometime would violate the fundamental rights guaranteed in the Constitution under Articles 14, 19 and 21 of the Constitution of India. In complete disregard of Article 21 and the promise of individual liberty, the police and prosecution are now using section 149 as a presumption of guilt of all persons who happen to be present at the spot, including those who become part of assembly oblivious to its unholy intentions or as curious onlookers. In rural India, people usually carry agricultural equipments like farsa/axe/lathis, hand sickle, shovel, spade, pickaxe, Hoe, mattock etc., with them. In any heated exchange it is not unlikely that the other residents of village are vocal about their “views” on the issue between the warring parties. In such an assembly when an offence takes place due to miscreance of one of the erring members the brunt is borne by all members of the assembly including all the onlookers who happened to carry a farsa/lathi with them and were curious enough to stop and look at what is happening. And if any of them has uttered a sentence then he is doomed for life imprisonment if ultimately an offence of murder is committed by one of the person. Over implication and subsequent arrest is rampant because of rival/ jealous/ motivated/interested parties are eager to volunteer as eye- witnesses thereby improving the “conviction rate” for the prosecution.

43. It is high time for the investigating agency to conduct 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.

44. It is the bounden duty of the Court, while considering the cases arising out of the provisions of Section 307 or Section 302 r/w 149 of IPC that the Court should act as societal parents and ensure a proper analysis of the evidence on record and merely because one of the accused committed the alleged offence, 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 for commission of the offence, in order to protect liberty of the citizens. Of course, such members are separately punishable for minor offences under Sections 143, 147,148,323,341 and 504 of IPC etc

49. It is also relevant to consider that the common object is necessary to invoke the provisions of Section 149 of IPC. For “common object”, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on spur of the moment; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part of Section 149 of IPC, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. It is not the case of the prosecution that there was a common object of all the accused persons prior to the concert of meeting of the members of unlawful assembly to cause death of the deceased. It is also not the case of the prosecution that the common object formed on spur of the moment and it is adopted by all the members and is shared by all of them for the commission of the offence. Admittedly as soon as the incident occurred, the accused persons ran away. Considering the totality of the facts and circumstances of the case, the learned Sessions Judge is not justified in convicting Accused Nos.2 to 5 under Section 302 of IPC with the aid of Section – 149 of IPC and sentencing them to undergo imprisonment  for life with fine and the same is liable to be set aside.

51.As we have already stated supra, the trial Court acquitted all the accused persons under Section 120B of IPC holding that the prosecution failed to prove the conspiracy among the accused persons to kill the deceased beyond reasonable doubt. Admittedly, the State has not filed any appeal against the acquittal of Accused No.1 to 5 for the offence punishable under Section 120B of IPC. Therefore, the impugned Judgment and Order of conviction under Section 302 read with Section 149 of IPC against the Accused Nos.2 to 5 is liable to be set aside.

Compiled by S. Basavaraj, Advocate, Daksha Legal.