Section 149 IPC- Essential Condition Of An Unlawful Assembly That Its Membership Must Be Five Or More: Supreme Court

The Supreme Court reiterated that it is an essential condition of an unlawful assembly that its membership must be five or more.

Less than five persons can be charged under Section 149 only if the prosecution has a case that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and un­armed, the bench comprising Justice Ajay Rastogi and Abhay S. Oka said.

In this case, the appellants contended that the charge­ sheet was originally filed against 20 persons and all of them faced trial and 17 out of 20 accused persons were acquitted by the Trial Court. That, no further appeal/revision was preferred by the prosecution against the judgment of acquittal passed by the Trial Court against those 17 accused persons who faced trial. That, appellants are 3 out of 20 accused persons were convicted for offence under Sections 148, 325/149 and 323/149 IPC. That the prosecution has no case that there were other unnamed/unknown persons who could not be traced/charged other than the persons who faced trial. That, the conviction of the appellants under Sections 325 with the aid of Section 149 IPC is unsustainable in law.

Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such 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. The bench, taking note of this provision, observed thus:

It may be noticed that the essential ingredients of Section 149 are that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. To say in other words, it is an essential condition of an unlawful assembly that its membership must be five or more. At the same time, it may not be necessary that five or more persons necessarily be brought before the Court and convicted. Less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and un­armed.

Agreeing with the contention raised by the appellant, the bench observed thus:

When the other co­ accused persons faced trial and have been given benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other persons along with the appellant in causing injuries to the victim. In the facts and circumstances, it was as such not permissible to invoke Section 149 IPC. The appellants may be held responsible for the offence, if any, which could be shown to have been committed by them with regard to the participation of others but that was not the case of the prosecution.

Observing thus, the court allowed the appeal and set aside the conviction of appellants.

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