The Supreme Court on August 6, 2019, in the case of Dev Karan @ Lambu v. State of Haryana has observed that as long as the ingredients of unlawful assembly are met, trial of offence under Section 149 of the Indian Penal Code, 1860, would not be illegal merely because Section 141 IPC was not invoked.
Section 149 IPC states that every member of unlawful assembly can be guilty of offence committed in prosecution of common object. Section 141 defines an 'Unlawful Assembly' as an assembly of five or more persons with a common object and Section 143 provides the punishment for being part of such an unlawful assembly.
One of the contentions advanced in this case was that unless there is infliction of punishment under Section 143 of the IPC, as a sequitur to forming an unlawful assembly under Section 141 of the IPC, there could be no cause to apply Section 149 of the IPC. Referring to some Supreme Court judgments, it was contended that the significance of not invoking Section 141 of the IPC is that the very substratum of constituting an unlawful assembly did not exist.
A Bench comprising of Justice Sanjay Kishan Kaul and Justice K.M. Joseph, however, rejected the submissions and said that it could not be concluded that there was any fatal flaw in the non-inclusion of Section 141 of the IPC while framing charges, as would render the complete trial illegal, or that it can result in a finding that there would be no occasion to invoke Section 149 of the IPC.
The court said: "Learned counsel appears not to have appreciated the judicial pronouncements in the correct perspective, as what is necessary for invoking Section 149 of the IPC has been set out in these judgments. It has nowhere been said that Section 141 of the IPC should be specifically invoked or else the consequences would be fatal. As long as the necessary ingredients of an unlawful assembly are set out and proved, as enunciated in Section 141 of the IPC, it would suffice. The actions of an unlawful assembly and the punishment thereafter are set out in the subsequent provisions, after Section 141 of the IPC, and as long as those ingredients are met, Section 149 of the IPC can be invoked."
