When does Unlawful Assembly Amount to riot in India? (Indian Penal Code, 1860)
1. To overawe by criminal force, or show of criminal force, (a) the Central or (b) any State Government or (c) Parliament or (d) the Legislature of any State or (e) any public servant in the exercise of the lawful power of such public servant;
2. To resist the execution of any law, or of any legal process;
3. To commit any mischief or criminal trespass, or other offences;
4. By means of criminal force, or show of criminal force, to any person (a) to take or obtain possession of any property, or (b) to deprive any person of the enjoyment of a right of which he is in possession or enjoyment; or (c) to enforce any right or supposed right;
5. By means of criminal force, or show of criminal force, (a) to compel any person to do what he is not legally bound to do, or (b) to omit to do what he is legally entitled to do.
As assembly, this was not unlawful when it assembled, may subsequently become an unlawful assembly (S. 141).
It will be seen from the above that there must be more than four persons having the common object before the constructive guilt under Section 142 can arise. The essence of the offence is the common object of the persons forming the assembly.
Thus, it has been held that where two of the five persons convicted had no common intention with the remaining three the conviction as against the rest cannot stand as there must be five or more persons with the common object to form an unlawful assembly.
The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression “to enforce any right or supposed right”, in the fourth clause of Section 141.
The assembly could not be designated as unlawful assembly if its object was to defend property by the use of force within the limits prescribed by law. [State of Bihar v. Nathu Pande, 1961(1) Supreme Court Cases, 207].
Section 146 lies down that wherever 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.
The essential ingredients that constitute the offence of rioting are: (1) that the accused persons being five or more in number formed an unlawful assembly; (2) that they were animated by a common object; (3) that force or violence was used by the unlawful assembly or any member of it; and (4) that such force was used in prosecution of the common object.
Riot and Unlawful Assembly:
A riot is an unlawful assembly in a particular state of activity, which activity is accompanied by the use of force or violence. It is only the use of force that distinguishes rioting from an unlawful assembly.
Two things are, therefore, necessary to convert a lawful assembly into a riot, viz., (a) the use of force or violence by an unlawful assembly or any member thereof and (b) such force or violence being used in prosecution of the common object of such assembly.
Riot and Waging War:
(1) Riot is an offence which falls under offences against public tranquility, while waging war is an offence against the State.
(2) Riot is not such a serious offence as waging war and consequently the latter is more severely punished.
(3) A riot is always for a private purpose, but the object of waging war is of general nature.