Report No. 42
Offences against The Public Tranquility
This Chapter deals with what are commonly known as "group offences", i.e., offences committed by a large number of persons which disturb the public tranquility or cause breach of the peace. The minimum number required (except in sections 153A, 159 and 160) is five. In other chapters also are included offences involving breach of the peace or disturbance of the public tranquility. But the essence of most of the offences under this Chapter is the combination of several persons united in the purpose of committing a criminal offence, and that consensus of purpose is itself an offence distinct from the criminal offences which these persons agree and intend to commit.
The essential connecting link amongst the offenders is the existence of a common object to do any of the acts described in section 141 which makes all of them members of an unlawful assembly. Vicarious liability attaches to every one of the members of the assembly, not only for any offence committed by any member in prosecution of the common object of the assembly, but also for any offence committed by one member which the others knew to be likely to be committed in prosecution of such common object. Sections 153A, 159 and 160 are somewhat out of place in this Chapter except for the fact that they also involve breach of peace or disturbance of public tranquility.
8.2. Section 14.-Scheme analysed.-
In order to constitute an unlawful assembly under section 141, the first requirement is that there should be at least five persons composing the assembly. The second requirement is that its common object should fall within one or the other of the types of activities described in the five clauses of the section. Four of these clauses envisage the use of criminal force or show of criminal force as an essential part of the activity, but clause third describes the unlawful object as committing "any mischief or criminal trespass or other offence", whether or not the offence involves the use of force or violence.
In both respects, the concept of unlawful assembly under the Code differs from the concept in England. There "an unlawful assembly is a common law misdemeanour which arises where three or more persons either (i) assemble to commit, or when assembled do commit, a breach of the peace; or (ii) assemble with intent to commit a crime by open force; or (iii) assemble for any common purpose, whether lawful or unlawful, in such manner as to give firm and courageous persons in the neighbourhood reasonable cause to fear that a breach of the peace will occur1"
We do not, however, think that any radical change is called for in the Penal Code definition and there is no harm in keeping it somewhat wider than in England.
1. Hood Philips Constitutional Law, (1967), p. 492.
8.3. Clause first.- The first clause of section 141 requires no comments. ten
8.4. Clause second.-
The second clause applies where the common object of the persons composing an assembly is "to resist the execution of any law or of any legal process". There may be some difficulty in appreciating the exact scope of the words "resisting the execution of any law'. Where there is no officer to enforce a provision of law, but the provision is contravened, it is not clear whether such contravention would amount to "resisting the execution of any law". Apparently, though the act may amount to "contravention" of law, it may not amount to "resisting its execution". However, the point is not of practical importance because grave cases of contraventions of the law would fall under the third clause, as the contraventions would also amount to offences.
8.5. Clause third.-
Under the third clause, an assembly is unlawful if its object is "to commit any mischief or criminal trespass, or other offence". The question arises whether the words "other offence" should be construed ejusdem generis with the two offences of 'mischief' and 'criminal trespass' expressly mentioned in the clause. Reported decisions do not show that such a construction was adopted by any High Court. Since the definition of 'offence' in section 40 is applicable to this section, all offences under the Code, irrespective of the extent of the punishment, would come within the scope of this clause, whereas only those offences under the special or local laws which are punishable with imprisonment for six months and upwards would come within its scope.
This appears to be rather illogical. If petty offences under special or local laws are to be excluded, there is no good reason why petty offences under the Code should be included. Logically, therefore, offences under the Code punishable with fine or imprisonment for less than six months should be excluded. However, having regard to the fact that all offences under the Cade are at present included, we propose as a via media that, in order to constitute an unlawful assembly, its object should be to commit an offence punishable with imprisonment, whether under the Code or under a special or local law. The clause may be simplified to read
"Third.-To commit any offence punishable with imprisonment; or"
As we are recommending1 the omission of section 40, "offence" here will cover offences under the Code and offences under special or local laws.
1. See para. 2.68, above.
8.6. Clause fourth.-
With reference to the fourth clause, we considered whether the expression "to enforce any right or supposed right" requires clarification, in view of the conflict of decisions on the question whether any distinction1 should be drawn between enforcing a right and defending or maintaining a right. This distinction is, however, not very material, because section 141 is subject to the law of private defence (section 96), and where the right of private defence accrues, it is immaterial if the exercise of that right is described as enforcing a right or as defending or maintaining a right. Hence we do not recommend any amendment to this clause.
1. The distinction is rejected in Canouri Lal v. K.E., 1889 ILR 16 Cal 206; and Ghayasuddin, AIR 1932 Pat 215, but Dilian v. State, AIR 1958 Pat 492, rests on the distinction.
8.7. Fifth Clause.- No change is needed in the fifth clause.
8.8. Existing Explanation.-
The existing Explanation, which provides that an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly, is useful and does not require any alteration.
8.9. Explanation of 'criminal force' to be added.-
The expression 'criminal force' which occurs in the section half a dozen times is now construed in the light of the definition contained in section 350. As we are proposing1 to simplify the-sections relating to criminal force and assault and, in particular, to omit sections 349 and 350, it will be desirable to add an Explanation in section 141 as follows.-
"Explanation.- Force is criminal when it is applied to any person with the intention of causing, or knowing it to be likely to cause, injury, fear or annoyance to that person, or in order to the committing of any offence."
1. See para. 16, below.
8.10. Sections 142 to 145.- Sections 142 to 145 need no change.