INTRODUCTION-
The offence of Rioting holds central importance in the Indian criminal jurisprudence. This is majorly on account of various riots that India has faced in both the pre-independence as well as the post-independence era. To cite a recent example, the national capital, New Delhi witnessed one such deadly riot over the controversial Citizenship Amendment Act, 2019 in the early months of 2020 which led to large scale violence, loss of innocent lives, arson and damage to public and private property. Accordingly, understanding the approach of the Indian courts while interpreting the offence of “rioting” under the Indian Penal Code, 1860 [‘IPC’] is pertinent.
The offence of 'rioting' is defined under Section 146 of the IPC.[1] It states that:
“146. Rioting- Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.”
Thus, the usage of force or violence by an assembly of five or more persons has been categorised as an offence by the provisions of section 146 of the IPC. Whilst the offence of rioting has been defined under section 146 of the IPC, its punishment is provided under section 147 of the IPC. The punishment for rioting may extend to two years with or without fine.[2] The offence is cognizable and triable by a Court of Magistrate.
INGREDIENTS OF THE OFFENCE OF RIOTING-
A plain reading of Section 146 of the IPC suggests that, in order to establish the guilt of a person under section 146, the following ingredients are essential to be established:
a. There must be an unlawful assembly;
b. Usage of force or violence by any member of the unlawful assembly; and
c. Such force or violence has been used in prosecution of the common object of the unlawful assembly.
We shall now discuss the ingredients of the offence of rioting along with their interpretation done by various in detail.
a. Unlawful Assembly-
To understand the nitty-gritty of the offence of rioting, the definition of “unlawful assembly” is also to be kept in mind. The IPC under Section 141 defines unlawful assembly as, an assembly of five or more persons having a common object to use criminal force against the Central/State Government, resist the operation of law, illegally obtain the possession of any property, commit criminal trespass, or compel a person to do any act which she is not legally bound to do/omit her from doing a legal act.[3] In Moti Das v. State of Bihar,[4] 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 essentials for constituting the offence of unlawful assembly can be summarised as”
i. An assembly of five or more persons;
ii. The members of the assembly must act according to their common object; and
iii. The common object must be to commit one of the five illegal objects mentioned under section 141 of the IPC.
The law is clear on the point that the above-mentioned ingredients must co-exist in order to term an assembly as unlawful assembly. In Dharam Pal v. State of Uttar Pradesh,[5]the Supreme Court held that the requirement of five individuals under section 141 is sacrosanct and if an unlawful assembly is constituted by only five persons, and one or more of them have been acquitted, the remaining accused being less than five in number cannot be convicted under section 143 of the IPC.
b. Use of force/violence-
While 'force' is defined under Section 349 of the IPC, 'violence' is not as such defined. The Supreme Court in Chandrika Sao v. State of Bihar[6] has held that a person can be said to have used force against another if she causes motion, change of motion or cessation of motion to another. The threshold of force is lower than that of criminal force which is defined under section 350 of the IPC and requires the intention of committing an offence by the person using force to another person.
The interpretation of the term “violence” was done by the Madras High Court in Lakshmi Ammal v. Samiappa.[7] The Court held that the term violence is not restricted to the usage of force against persons but also extends to the usage of force against objects. Hence, violence has an even wider connotation than force. Therefore, it must be noted that the threshold for the offence of rioting has been deliberately kept below the offences in which the usage of criminal force is an ingredient. Even a slightest usage of force by any member of an unlawful assembly in prosecution of a common object will amount to rioting.
c. Common object-
Common object has remained one of the central points of discussion in many of the cases of the Indian courts while deciding upon the guilt of group liability offences which are mentioned under Chapter VIII (Section 141 to 160) of the IPC. Object has been interpreted to mean purpose by courts. It can be formed at any stage by the members of the unlawful assembly. A pre-deliberation as to committing the offence of rioting is not essential and an assembly may be lawful in the beginning but may turn into an unlawful assembly at a later stage.[8]
Furthermore, while it is important to prove that the unlawful assembly was having a common object, it is also essential to prove that the object was unlawful. In Bhudeo Mandal v. State of Bihar,[9]the Hon’ble Supreme Court propounded that evidence is important to be culled out to prove that the common object of the members of an unlawful assembly was unlawful in nature before convicting any individual for the offence of rioting.
The Hon’ble Supreme Court occasioned to interpret the scheme of the offence of Rioting under Chapter VIII in Vinubhai Ranchodbhai Patel v. Rajivbhai Dudabhai Patel & Ors.[10] While interpreting the same it held that:
“If force or violence is used by an unlawful assembly or any member thereof in prosecution of the common objective of such assembly, every member of such assembly is declared under Section 146 to be guilty of the offence of rioting punishable with two years' imprisonment under Section 147. To constitute the offence of rioting under Section 146, the use of force or violence need not necessarily result in the achievement of the common object. In other words, the employment of force or violence need not result in the commission of a crime or the achievement of any one of the five enumerated common objects under Section 141.”
Hence, it can be correctly presumed that the achievement of the common object of the members of an unlawful assembly is not essential for establishing the offence of rioting. Furthermore, the unlawful common object of the members of an unlawful assembly coupled with even slightest usage of force/violence is sufficient for the purposes of constituting the offence of rioting under the IPC.
LANDMARK CASES-
The ingredients which are essential to constitute an offence of rioting has been discussed in the preceding sections of the article and now we shall discuss some interesting propositions relating to the offence of rioting which have been decided by the Hon’ble Supreme Court and different High Courts.
Whether mere presence in an unlawful assembly would amount to the offence of rioting?
It is now an established position of law that mere presence in any unlawful assembly does not constitute the offence of rioting.[11] The law mandates that in order to punish an individual under Section 147 of the IPC, active participation in the pursuance of the common object of the unlawful assembly is mandatory to prove the offence of rioting. In Vijay Pandurang Thakre v. State of Maharashtra,[12] it was held by the Apex Court that:
“None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly.”
Therefore, a mere spectator of an unlawful assembly in absence of any overt action cannot be held liable under section 147 of the IPC.
Whether a sudden quarrel constitutes rioting?
Sudden quarrel has been interpreted as distinct from the offence of rioting. This is largely because the offence of rioting requires individuals to form a group of five or more people and use force in the prosecution of a common object. These ingredients of the offence of rioting cannot be fulfilled in cases of sudden quarrel and hence the people involved in sudden quarrel cannot as such be punished for rioting.
In the State of U.P. v. Jodha Singh,[13] the accused were charged under sections 147/148 of the IPC, section 302 r/w section 149 of the IPC and section 307 read with section 149 of the IPC, and sentenced for imprisonment for life by the trial court. The High Court had acquitted the accused persons of all the charges framed against them. Hence, the State of U.P. preferred an appeal before the Hon’ble Supreme Court. The court while interpreting the scope of rioting under section 147 and 148 of the IPC acquitted the accused persons under sections 147 and 148 and held that:
“On the question whether all the accused or only some of them should be convicted for the injuries caused to the deceased and PW 1, we must say even at the outset that the accused cannot be convicted for the offence of rioting because the attack on the victims had taken place in the course of a sudden quarrel. The accused had not formed themselves into an unlawful assembly in order to commit the offence of rioting. Hence none of the accused can be convicted under Section 147 or Section 148 IPC.”
CONCLUSION-
Offence of rioting should not be confused with unlawful assembly because a person will only be charged for offence of rioting when that person participates in pursuance of common object of that unlawful assembly. Sudden quarrel is different from offense of rioting because the element needed for rioting is not constituted in sudden quarrel. In rioting the use of force and violence is against the public at large. Persons charged can approach the High Court under Section 482, CrPC to seek redressal.
Since the object is to meet out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not about technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny.
REFERENCES-
[1] Indian Penal Code, Act 45 of 1860, § 146.
[2] Indian Penal Code,Act 45 of 1860, § 147.
[3] Bhanwar Singh v. State of Madhya Pradesh, (2008) 16 SCC 657.
[4] Moti Das v. State of Bihar, AIR 1954 SC 457.
[5] Dharam Pal v. State of Uttar Pradesh, AIR 1975 SC 1917.
[6] Chandrika Sao v. State of Bihar,AIR 1967 SC 170.
[7] Lakshmi Ammal v. Samiappa, AIR 1968 Mad 310.
[8] Moti Das v. State of Bihar, AIR 1954 SC 457.
[9] Bhudeo Mandal v. State of Bihar, AIR 1981 SC 1219.
[10] Vinubhai Ranchodbhai Patel v. Rajivbhai Dudabhai Patel & Ors, (2018) 7 SCC 743, ¶26.
[11] Amrika Bai v. State of Chhattisgarh, (2019) 4 SCC 620.
[12] Vijay Pandurang Thakre v. State of Maharashtra, (2017) 4 SCC 377.
[13] State of U.P. v. Jodha Singh, (1989) 3 SCC 465.
(Authors: Ishu Gupta, Symbiosis Law School, Noida & Saksham Sabarwal, National Law University, Delhi)