Law: Penal Code (XLV of 1860)

Section: 149

Penal Code (XLV of 1860)--- ----S.149---Members of unlawful assembly cannot be acquitted for lack of corroboration as to their participation in offence committed by assembly. Section 149 makes every member of an unlawful Assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that Assembly. However, the vicarious liability of the members of the unlawful Assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful Assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial, lie cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful Assembly or such as the members of the Assembly knew to be likely to be committed in prosecution of that object. The basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. Thus, once the Court holds that certain accused persons formed an unlawful assembly and an offence was committed by any member of that Assembly in prosecution of the common object of that assembly, of such as the members of the Assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same Assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. 'The prosecution would have no obligation to prove it. In other words it is not open to the Court to acquit members of the unlawful assembly for lack of corroboration as to their participation. R.L. Kohli, Senior Advocate and Shakil…