Supreme Court: Seven-Principal Test to Identify Unlawful Assembly Members

Introduction:

In an important verdict, the Apex Court of India in Zainul vs State of Bihar directed the legal test for Deciding person liability as per Section 149 of the Indian Penal Code (Now Section 190 of The Bharatiya Nyaya Sanhita, 2023), which explains the unlawful assembly. Justices J.B. Pardiwala and R. Mahadevan delivered the judgment, highlighting the importance of protecting individuals from Unlawful prosecution merely based on their presence at the time of a crime. The court presented a Seven-Principal test to examine whether an accused person shared the common object of an unlawful assembly. Hence court laid down significant factors for courts to differentiate between mere presence and active participation.

Background:

The case occurred on 20 November 1988, when Jagdish Mahato, an injured eyewitness, gave a declaration from the hospital, and the FIR includes 72 accused individuals. As per the prosecution, PW-20 and his brother went to their government agricultural ground, where they had harvested paddy the previous day. A crowd of 400–500 people, including several named accused, reportedly assembled with weapons to restrain crop collection. They ruined the crop and assailed PW-20 and his brother, killing the latter. PW-20 given the names of 30 individuals and detailed weapons like guns, swords, and lathis. Villagers, including Sarjug Mahato and other prosecution witnesses, hurried to the location but were also assaulted Sarjug Mahato was allegedly shot dead by Accused No. 1. Police filed a charge sheet under IPC Sections 148, 149, 307, and 302 against 24 people. Whereas the Sessions Court convicted 21 and convicted them to life imprisonment and acquitted 3. The High Court upheld the order of Session Court. Therefore, appellants filed the present appeals before the Apex Court.

The Supreme Court observation on Unlawful Assembly

Justices JB Pardiwala and R Mahadevan emphasized a Comprehensive factor to decide when an accused is considered to framework to determine when an accused can be considered to share the common objective of an unlawful assembly. The Justice directed that the prosecution must first have to prove involvement through direct or circumstantial evidence before being taken into the specific criteria.

Court Added,

“The prosecution has to establish, through reasonably direct or indirect circumstances, that the accused persons shared a common object of the unlawful assembly. The test to determine whether a person is a passive onlooker or an innocent bystander is the same as that applied to ascertain the existence of a common object. The existence of a common object is to be inferred from the circumstances of each case, such as:

(a) The time and place at which the assembly was formed;

(b) The conduct and behavior of its members at or near the scene of the offence;

(c) The collective conduct of the assembly, as distinct from that of individual members;

(d) The motive underlying the crime;

(e) The way the occurrence unfolded;

(f) The nature of the weapons carried and used;

(g) The nature, extent and number of the injuries inflicted, and other relevant considerations."

The Court further concluded that, when charges are aimed against many persons mainly in crimes involving mobs, the court must exercise extreme care prior to punishing all on the basis of general or omnibus evidence.

Court observed that,

The law on this point can be summarized to the effect that where there are general allegations against a large number of persons, the court must remain very careful before convicting all of them on vague or general evidence. Therefore, the courts ought to look for some cogent and credible material that lends assurance. It is safe to convict only those whose presence is not only consistently established from the stage of FIR, but also to whom overt acts are attributed which are in furtherance of the common object of the unlawful assembly,”

“The impugned judgment and order to the extent of holding the appellants herein guilty of the offences they were charged with, is set aside. The appellants are accordingly acquitted. Their bail bonds stand discharged,”

Conclusion:

Justices JB Pardiwala and R Mahadevan, directed that to punish anyone for participating in an unlawful assembly; to consider in this section the prosecution must first prove their connection through clear evidence. The court must then look at serval's factors like behavior, weapons used, injuries caused, and how the crime happened to decide if the person shared the group’s criminal intention.

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