KembaraXtra - Bharatiya Nyaya Sanhita - Section 189 - Unlawful Assembly

Introduction

Section 189 of the Bharatiya Nyaya Sanhita, 2023 deals with the meaning of an unlawful assembly, the circumstances in which a gathering becomes unlawful, and the criminal liability arising from membership, participation, possession of deadly weapons, recruitment and harbouring of persons for such an assembly.

The provision is intended to protect public peace and prevent groups of persons from combining to achieve unlawful objectives.

An assembly of five or more persons does not automatically become unlawful. It becomes unlawful when the persons composing it possess one of the common objects specified under Section 189(1).

Section 189 also recognises that an assembly which was lawful when it first gathered may subsequently become unlawful.

The section contains nine sub-sections covering different forms of conduct connected with unlawful assemblies.

Q1. What is an unlawful assembly under Section 189(1) of the Bharatiya Nyaya Sanhita?

Answer:

An unlawful assembly is an assembly of five or more persons whose common object is to achieve any one of the five unlawful purposes specified in Section 189(1).

The law does not prohibit persons from gathering merely because they form a group.

What makes the gathering unlawful is the existence of a prohibited common object.

Therefore, three essential requirements must coexist:

• There must be an assembly of five or more persons.
• The persons must possess a common object.
• The common object must fall within one of the five categories specified in Section 189(1).

Memory Formula

FIVE OR MORE PERSONS + COMMON OBJECT + STATUTORILY PROHIBITED OBJECT = UNLAWFUL ASSEMBLY

Q2. What is the object of Section 189?

Answer:

The principal object of Section 189 is to preserve public tranquillity by preventing groups of persons from pursuing unlawful purposes through collective action.

A group acting together may create a greater threat to public peace than an individual acting alone.

The law therefore recognises the danger of collective conduct directed towards resisting lawful authority, committing offences, obtaining property through criminal force or compelling persons to act against their legal rights.

Section 189 seeks to prevent such conduct before it develops into more serious offences, including rioting.

However, it does not prohibit lawful public meetings, peaceful demonstrations or ordinary gatherings.

The statutory requirements must be satisfied before criminal liability can arise.

Q3. Which provisions of the Indian Penal Code correspond to Section 189 BNS?

Answer:

Section 189 consolidates several provisions previously contained in the Indian Penal Code, 1860.

The corresponding provisions are:

Section 189(1) BNS: Section 141 IPC — Unlawful assembly.

Section 189(2) BNS: Sections 142 and 143 IPC — Membership of unlawful assembly and punishment.

Section 189(3) BNS: Section 145 IPC — Joining or continuing in unlawful assembly after being commanded to disperse.

Section 189(4) BNS: Section 144 IPC — Joining unlawful assembly armed with a deadly weapon.

Section 189(5) BNS: Section 151 IPC — Knowingly joining or continuing in an assembly after it has been commanded to disperse.

Section 189(6) BNS: Section 150 IPC — Hiring or conniving at hiring persons to join an unlawful assembly.

Section 189(7) BNS: Section 157 IPC — Harbouring persons hired for an unlawful assembly.

Sections 189(8) and 189(9) BNS: Section 158 IPC — Being hired to participate in an unlawful assembly or to go armed.

The principal structural change is that these previously separate provisions have been brought together under Section 189.

The supplied commentary also notes a minor drafting change in Section 189(1)(a), referring expressly to the Central Government.

Essential Ingredients of Unlawful Assembly

Q4. What are the three essential ingredients of an unlawful assembly?

Answer:

The following three elements must be established.

First — An assembly of five or more persons

There must be at least five persons composing the assembly.

An assembly consisting of fewer than five persons does not satisfy the numerical requirement of Section 189(1).

Second — A common object

The members must be united by a common object.

It is not enough that several persons happen to be present at the same location.

Third — An object prohibited by Section 189(1)

The common object must be one of the five unlawful objects specifically mentioned in the provision.

An assembly of five or more persons pursuing an entirely lawful purpose does not become unlawful merely because of its size.

Memory Formula

NUMBER + COMMON OBJECT + UNLAWFUL PURPOSE = SECTION 189(1)

Q5. How many persons are required to constitute an unlawful assembly?

Answer:

At least five persons are required.

This is an express statutory requirement.

An assembly of three or four persons cannot ordinarily be classified as an unlawful assembly under Section 189(1), even if those persons commit another criminal offence.

However, all five participants need not necessarily be identified by name or convicted.

The important question is whether the evidence establishes that the assembly actually consisted of five or more persons sharing the required common object.

This distinction becomes particularly important where some accused persons are acquitted.

Q6. Is every assembly of five or more persons an unlawful assembly?

Answer:

No.

The presence of five or more persons satisfies only the numerical requirement.

There must also be a common object falling within Section 189(1).

Example

Ten persons assemble peacefully in a public park to discuss local environmental problems.

They intend to submit a petition to the authorities.

Their gathering does not become unlawful merely because ten persons are present.

However, if the group subsequently adopts the common object of using criminal force to prevent a public servant from performing lawful duties, the legal position changes.

The assembly may then become unlawful.

Q7. Is the use of actual force necessary to constitute an unlawful assembly?

Answer:

No.

Section 189(1) defines an unlawful assembly primarily by reference to its common object.

Actual violence is not an indispensable requirement for every form of unlawful assembly.

For example, Section 189(1)(a) covers a common object to overawe specified authorities by criminal force or a show of criminal force.

Similarly, Section 189(1)(c) covers a common object to commit mischief, criminal trespass or another offence.

Therefore, an unlawful assembly may exist even before the intended offence or violence has actually occurred.

Actual force or violence becomes particularly important when considering the separate offence of rioting under Section 191.

Five Unlawful Common Objects Under Section 189(1)

Q8. What are the five unlawful objects specified under Section 189(1)?

Answer:

Section 189(1) identifies five categories of common objects that make an assembly of five or more persons unlawful.

They are:

Clause (a): Overawing the Government, Parliament, a State Legislature or a public servant by criminal force or a show of criminal force.

Clause (b): Resisting the execution of any law or legal process.

Clause (c): Committing mischief, criminal trespass or any other offence.

Clause (d): Using criminal force or a show of criminal force to obtain property, interfere with specified rights or enforce a right or supposed right.

Clause (e): Using criminal force or a show of criminal force to compel a person to do something not legally required or to omit something legally permitted.

Only one of these five prohibited objects is necessary.

The prosecution need not establish all five.

Memory Formula

OVERAWE → RESIST → COMMIT OFFENCE → OBTAIN PROPERTY/ENFORCE RIGHT → COMPEL

Q9. What does Section 189(1)(a) provide?

Answer:

Section 189(1)(a) concerns an assembly whose common object is to overawe certain public authorities through criminal force or a show of criminal force.

The authorities protected include:

• The Central Government.
• Any State Government.
• Parliament.
• The Legislature of any State.
• A public servant exercising lawful powers.

The expression overawe refers to intimidating or overpowering lawful authority through the threat or display of criminal force.

The provision does not prohibit ordinary disagreement with government policy.

It targets collective intimidation involving criminal force or its display.

Example

Six persons assemble outside a government office carrying weapons and threaten officials with violence unless they abandon a lawful enforcement operation.

If their common object is to overawe the officials through criminal force or its display, Section 189(1)(a) may apply.

Q10. Does criticism of the Government constitute an unlawful assembly?

Answer:

No.

Criticism of the Government, peaceful protest and expressions of public dissatisfaction do not automatically amount to an unlawful assembly.

The statutory requirement under Section 189(1)(a) is the common object of overawing the specified authority through criminal force or a show of criminal force.

The distinction is between lawful expression and unlawful intimidation.

Case: Durga Das v. State of Punjab

According to the supplied commentary, a procession expressing dissatisfaction with the police through offensive slogans did not, merely on that basis, constitute overawing the authorities.

However, the position was different where participants threw stones at police officers and caused injuries.

Principle

Offensive slogans alone are not equivalent to criminal force.

Conduct involving force or its threatening display may bring the assembly within Section 189(1)(a), provided the remaining ingredients are established.

Q11. What does Section 189(1)(b) provide?

Answer:

Section 189(1)(b) concerns an assembly whose common object is to resist the execution of any law or legal process.

The expression legal process may include lawful court orders, warrants and other processes recognised by law.

The essential issue is whether the assembly has a shared objective of resisting the execution of the law or legal process.

Example

Seven persons assemble with the common object of preventing officers from executing a lawful court order.

Their collective objective is to obstruct the legal process.

Such an assembly may fall within Section 189(1)(b).

It is important to note that clause (b) does not itself expressly require the use of criminal force, unlike clauses (a), (d) and (e).

Q12. What does Section 189(1)(c) provide?

Answer:

Section 189(1)(c) applies where the common object of an assembly of five or more persons is to commit:

• Mischief.
• Criminal trespass.
• Any other offence.

The clause is broad because it is not confined to a particular category of offence.

Example

Six persons assemble with the common object of entering another person’s premises unlawfully to commit criminal trespass.

Their gathering may constitute an unlawful assembly.

Likewise, an assembly formed with the common object of damaging another person’s property through mischief may fall within the provision.

The offence intended by the group need not already have been completed for the assembly to satisfy the definition.

Q13. What does Section 189(1)(d) provide?

Answer:

Section 189(1)(d) concerns the use of criminal force or a show of criminal force to achieve certain objectives involving property and legal rights.

These objectives include:

First: Taking or obtaining possession of property.

Second: Depriving a person of the enjoyment of a right of way.

Third: Depriving a person of the use of water or another incorporeal right that the person possesses or enjoys.

Fourth: Enforcing a right or supposed right.

A particularly important feature is that the provision also covers the use of criminal force to enforce a supposed right.

Consequently, a person cannot automatically justify collective criminal force by claiming that the group believed itself entitled to the property.

Example

Six persons gather to forcibly take possession of disputed agricultural land from another person.

They intend to use criminal force to remove the existing occupier.

Even if they claim ownership of the land, their assembly may fall within Section 189(1)(d).

Q14. Can a person lawfully defend possession of property against aggression?

Answer:

Yes, subject to the legal limits governing the right of private defence.

A person who is lawfully exercising the right of private defence does not automatically become a member of an unlawful assembly merely because several persons act together to resist aggression.

However, the right of private defence is not unlimited.

The circumstances, necessity and extent of force used remain important.

Case: Baljit Singh v. State of Uttar Pradesh, AIR 1976 SC 2273

According to the supplied commentary, the Supreme Court considered a dispute concerning possession of land and the use of force against persons attempting dispossession.

The Court recognised the significance of the right of private defence when determining whether the accused had formed an unlawful assembly for the purpose of forcibly obtaining possession.

The supplied account also explains that excessive force may nevertheless give rise to criminal liability for a separate offence.

Principle

A lawful claim to possession and the lawful exercise of private defence must be distinguished from a common object to use criminal force unlawfully.

A person may avoid liability for unlawful assembly on the particular facts but still face liability for excessive violence.

Q15. What does Section 189(1)(e) provide?

Answer:

Section 189(1)(e) applies where an assembly has the common object of using criminal force or a show of criminal force to compel a person:

First: To do something that the person is not legally bound to do.

Second: To refrain from doing something that the person is legally entitled to do.

The provision protects individual legal freedom against collective coercion.

Example 1

Six persons threaten a shopkeeper with criminal force unless the shopkeeper pays money that is not legally owed.

The group may fall within Section 189(1)(e).

Example 2

Seven persons gather to threaten a person with violence unless that person abandons a lawful activity.

Their common object may also fall within the clause.

Memory Formula

CRIMINAL FORCE + COMPEL UNREQUIRED ACT / PREVENT LAWFUL ACT = SECTION 189(1)(e)

Common Object and Membership

Q16. What is meant by the expression ‘common object’?

Answer:

A common object is the shared objective that unites the members of an assembly.

It is the central element distinguishing an unlawful assembly from an ordinary gathering.

The members must be connected by a common purpose falling within one of the prohibited categories under Section 189(1).

A common object may be inferred from the surrounding circumstances, including conduct, weapons, statements and the manner in which the group acts.

It need not necessarily be established through an express written or spoken agreement.

However, the common object must be proved; it cannot simply be presumed because several persons are present together.

Q17. Must every member share the common object?

Answer:

For a person to be treated as a member of an unlawful assembly, the necessary connection with its prohibited common object must be established.

Section 189(2) expressly refers to a person who is aware of the facts making the assembly unlawful and intentionally joins or continues in it.

Therefore, membership involves more than accidental physical presence.

The prosecution must establish the relevant knowledge and intentional association.

A person who is merely passing through the area or observing events without joining the assembly is not automatically a member.

Q18. Is an express agreement necessary to establish a common object?

Answer:

No.

A common object does not necessarily require a formal agreement.

It may arise from the circumstances in which the persons assemble and act together.

For example, where several persons arrive together carrying weapons, make coordinated threats and attempt to prevent execution of a lawful order, their common object may be inferred from their conduct.

Nevertheless, such an inference must be supported by evidence.

The existence of a crowd, without more, does not establish a prohibited common object.

Q19. Can a lawful assembly subsequently become unlawful?

Answer:

Yes.

The Explanation to Section 189(1) expressly provides that an assembly which was not unlawful when it first assembled may subsequently become an unlawful assembly.

This is an important statutory principle.

The character of an assembly is not permanently determined by its original purpose.

Its common object may change as events develop.

Example

Eight persons assemble peacefully to discuss a neighbourhood dispute.

Initially, their gathering is lawful.

During the discussion, they collectively decide to use criminal force to remove another person from disputed land.

Once the group adopts the prohibited common object, the assembly may become unlawful.

Memory Formula

LAWFUL ASSEMBLY + SUBSEQUENT UNLAWFUL COMMON OBJECT = UNLAWFUL ASSEMBLY

Q20. Is mere presence at the scene of an unlawful assembly sufficient for criminal liability?

Answer:

No.

Mere physical presence at the scene does not automatically establish membership.

A person may be present as a spectator, passer-by or someone who has no connection with the unlawful common object.

The relevant question is whether the person knowingly and intentionally joined or continued in the assembly.

Case: Mathu Naicker v. State of Tamil Nadu

According to the supplied commentary, a curious spectator does not become a member of an unlawful assembly merely by being present at the location.

Case: Madan Singh v. State of Bihar, 2004 Cri LJ 2862 (SC)

The supplied commentary explains that mere presence is insufficient unless the person shares, or is actuated by, the unlawful common object.

Principle

PRESENCE ALONE ≠ MEMBERSHIP

However, direct personal commission of violence is not always necessary to establish membership or liability under the separate common-object rule in Section 190.

Number of Persons and Judicial Decisions

Q21. What happens if fewer than five accused persons are ultimately convicted?

Answer:

The conviction of fewer than five persons does not necessarily mean that no unlawful assembly existed.

The crucial question is whether the evidence establishes that at least five persons actually composed the unlawful assembly.

Some participants may remain unidentified, abscond or not be brought to trial.

However, the prosecution cannot simply assume the existence of additional members.

Their participation must be supported by evidence.

Q22. What principle was established in Mohan Singh v. State of Punjab, AIR 1963 SC 174?

Answer:

In the case described in the supplied commentary, five persons were charged in connection with murder and unlawful assembly under the former IPC provisions.

Two persons were acquitted.

The remaining three were convicted by the High Court.

On appeal, the Supreme Court considered whether the remaining three could be held liable on the basis of membership of an unlawful assembly.

The supplied account states that there was no evidence establishing the presence of additional unidentified participants.

Consequently, the necessary numerical foundation for the unlawful assembly was not established.

Legal Principle

Where only five persons are alleged to constitute the assembly, and acquittals reduce the established membership below five, liability based on unlawful assembly may fail unless evidence establishes other participants.

Q23. What principle was explained in Ram Bilas Singh v. State of Bihar, (1964) 1 SCR 775?

Answer:

According to the supplied commentary, the case concerns situations in which fewer than five accused persons are convicted, but evidence may nevertheless establish that the original unlawful assembly consisted of five or more persons.

The existence of unidentified participants may be established through:

• Allegations in the charge supported by evidence.
• Information contained in the first information report.
• Other reliable evidence showing the participation of additional persons.

These are possible sources of proof rather than automatic or individually indispensable statutory requirements.

Legal Principle

The decisive issue is the actual membership of the unlawful assembly, not merely the number of persons eventually convicted.

Q24. What principle was established in Kartar Singh v. State of Punjab, AIR 1961 SC 1787?

Answer:

According to the supplied commentary, thirteen persons were charged, but only three were ultimately convicted.

The remaining accused were acquitted.

However, evidence indicated that several other unidentified persons had participated in the incident.

The case illustrates that an unlawful assembly may still be established even though fewer than five named accused are convicted.

The prosecution must nevertheless prove the existence of at least five participants.

Memory Formula

FIVE PARTICIPANTS MUST BE PROVED — FIVE CONVICTIONS ARE NOT ALWAYS NECESSARY.

Section 189(2) — Membership of Unlawful Assembly

Q25. What does Section 189(2) provide?

Answer:

Section 189(2) deals with a person who knowingly and intentionally joins or continues in an unlawful assembly.

A person becomes a member of an unlawful assembly when:

• The assembly is unlawful.
• The person is aware of the facts that make it unlawful.
• The person intentionally joins or continues in it.

The provision also prescribes punishment for such membership.

A person need not personally commit a separate act of violence to attract Section 189(2).

The offence concerns knowing and intentional membership.

Q26. What is the punishment under Section 189(2)?

Answer:

The punishment is:

Imprisonment of either description for a term extending up to six months, or fine, or both.

The imprisonment may therefore be simple or rigorous.

Classification

Cognizable.

Bailable.

Triable by any Magistrate.

Section 189(3) — Continuing After Command to Disperse

Q27. What does Section 189(3) provide?

Answer:

Section 189(3) deals with a person who joins or continues in an unlawful assembly despite knowing that the assembly has been commanded, in the manner prescribed by law, to disperse.

The provision concerns disobedience of a lawful dispersal command in the context of an unlawful assembly.

The essential ingredients are:

• There is an unlawful assembly.
• The assembly has been commanded to disperse in the legally prescribed manner.
• The accused knows about that command.
• The accused nevertheless joins or continues in the assembly.

The offence is more serious than ordinary membership because the person remains associated with the unlawful assembly despite the lawful direction to disperse.

Q28. What is the punishment under Section 189(3)?

Answer:

The punishment is:

Imprisonment of either description for a term extending up to two years, or fine, or both.

Classification

Cognizable.

Bailable.

Triable by any Magistrate.

Section 189(4) — Membership While Armed

Q29. What does Section 189(4) provide?

Answer:

Section 189(4) concerns a person who is a member of an unlawful assembly while armed with:

• A deadly weapon; or
• An object which, when used as a weapon of offence, is likely to cause death.

The provision recognises the additional danger created by armed participation in an unlawful assembly.

A weapon need not necessarily be used to inflict injury before this sub-section can apply.

The statutory focus is on membership while armed with the specified kind of weapon or object.

Q30. What is meant by a deadly weapon under Section 189(4)?

Answer:

A deadly weapon is generally an object capable of causing death, having regard to its nature and the circumstances of its use.

Examples may include firearms and certain knives.

However, an ordinary object may also fall within the provision if, when used as a weapon of offence, it is likely to cause death.

The assessment depends on the object’s characteristics and the manner in which it is capable of being used.

Example

Six persons assemble to commit criminal trespass.

One member carries a weapon that is likely to cause death when used offensively.

That member may attract Section 189(4), subject to proof of the other statutory ingredients.

Q31. What is the punishment under Section 189(4)?

Answer:

The punishment is:

Imprisonment of either description for a term extending up to two years, or fine, or both.

Classification

Cognizable.

Bailable.

Triable by any Magistrate.

Section 189(5) — Assembly Likely to Disturb Public Peace

Q32. What does Section 189(5) provide?

Answer:

Section 189(5) deals with a person who knowingly joins or continues in an assembly of five or more persons likely to cause a disturbance of public peace after that assembly has been lawfully commanded to disperse.

The important ingredients are:

• An assembly of five or more persons.
• Likelihood of disturbance of public peace.
• A lawful command to disperse.
• Knowing joining or continuation after the command.

Unlike Section 189(3), this provision is not confined to an assembly already established to be unlawful under Section 189(1).

Q33. What is the difference between Sections 189(3) and 189(5)?

Answer:

Section 189(3) applies to an unlawful assembly within the meaning of Section 189(1).

The person knows that the assembly has been legally commanded to disperse but nevertheless joins or continues in it.

The maximum imprisonment is two years.

Section 189(5) applies to an assembly of five or more persons likely to disturb public peace after a lawful dispersal command.

Its maximum imprisonment is six months.

The Explanation to Section 189(5) expressly states that where the assembly is unlawful under Section 189(1), the offender is punishable under Section 189(3).

Memory Formula

189(3) = UNLAWFUL ASSEMBLY + DISPERSAL COMMAND = TWO YEARS

189(5) = FIVE OR MORE + LIKELY PUBLIC PEACE DISTURBANCE + DISPERSAL COMMAND = SIX MONTHS

Q34. What is the punishment under Section 189(5)?

Answer:

The punishment is:

Imprisonment of either description for a term extending up to six months, or fine, or both.

Classification

Cognizable.

Bailable.

Triable by any Magistrate.

Section 189(6) — Hiring Persons for an Unlawful Assembly

Q35. What does Section 189(6) provide?

Answer:

Section 189(6) deals with a person who:

• Hires;
• Engages;
• Employs;
• Promotes; or
• Connives at the hiring, engagement or employment of another person

to join or become a member of an unlawful assembly.

The provision prevents a person from avoiding responsibility by arranging for others to participate in the unlawful assembly instead of personally joining it.

It extends liability to those responsible for recruiting or facilitating the recruitment of participants.

Q36. What is the nature of liability under Section 189(6)?

Answer:

Section 189(6) provides that the person responsible for hiring, engaging or employing others may be punished as a member of the unlawful assembly.

It further extends liability to offences committed by such recruited persons as members of the assembly in pursuance of the hiring, engagement or employment.

The person may therefore be held liable in the same manner as though personally a member of the assembly or personally responsible for the relevant offence.

Example

A person hires six individuals to form an unlawful assembly for forcibly obtaining possession of disputed land.

The person arranging the recruitment does not personally attend the scene.

Nevertheless, Section 189(6) may apply because the law expressly addresses hiring and related conduct.

Q37. What is the punishment and classification under Section 189(6)?

Answer:

Section 189(6) does not prescribe one fixed term of imprisonment for every case.

Instead, liability is determined by reference to membership of the unlawful assembly and any offence covered by the provision.

According to the supplied classification:

Cognizable: Yes.

Bailable or non-bailable: According to the offence involved.

Triable by: The court competent to try that offence.

This differs from several other sub-sections of Section 189, which prescribe specific maximum imprisonment terms.

Section 189(7) — Harbouring Persons Hired for an Unlawful Assembly

Q38. What does Section 189(7) provide?

Answer:

Section 189(7) concerns a person who harbours, receives or assembles certain persons in a house or premises under that person’s occupation, charge or control.

The provision applies where the accused knows that those persons:

• Have been hired, engaged or employed; or
• Are about to be hired, engaged or employed

to join or become members of an unlawful assembly.

The section therefore targets the knowing provision of premises or shelter for persons recruited or about to be recruited for unlawful assembly activities.

Q39. What are the essential ingredients of Section 189(7)?

Answer:

The essential requirements are:

First: The accused harbours, receives or assembles persons.

Second: The activity occurs in premises under the accused’s occupation, charge or control.

Third: The accused knows that the persons have been, or are about to be, hired, engaged or employed to join an unlawful assembly.

The required knowledge is important.

The mere presence of visitors at a person’s premises does not automatically establish the offence.

Q40. What is the punishment under Section 189(7)?

Answer:

The punishment is:

Imprisonment of either description for a term extending up to six months, or fine, or both.

Classification

Cognizable.

Bailable.

Triable by any Magistrate.

Section 189(8) — Being Hired to Participate

Q41. What does Section 189(8) provide?

Answer:

Section 189(8) concerns a person who is:

• Engaged;
• Hired;
• Offering to be hired or engaged; or
• Attempting to be hired or engaged

to do or assist in doing any of the acts specified under Section 189(1).

The provision therefore addresses the person offering or providing services for the prohibited activities.

It is not confined to the person who actually carries out the intended unlawful act.

The wording expressly includes offering or attempting to be hired or engaged.

Q42. What is the punishment under Section 189(8)?

Answer:

The punishment is:

Imprisonment of either description for a term extending up to six months, or fine, or both.

Classification

Cognizable.

Bailable.

Triable by any Magistrate.

Section 189(9) — Being Hired to Go Armed

Q43. What does Section 189(9) provide?

Answer:

Section 189(9) concerns a person engaged or hired in the manner described in Section 189(8) who:

• Goes armed with a deadly weapon or qualifying object; or
• Engages or offers to go armed with such a weapon or object.

The provision addresses the aggravated danger created by a person being hired or engaged for the prohibited acts while armed, or agreeing or offering to go armed.

Example

A person agrees to be hired to assist in a prohibited collective act under Section 189(1) and offers to attend armed with a deadly weapon.

Section 189(9) may apply if the statutory requirements are satisfied.

Q44. What is the punishment under Section 189(9)?

Answer:

The punishment is:

Imprisonment of either description for a term extending up to two years, or fine, or both.

Classification

Cognizable.

Bailable.

Triable by any Magistrate.

Distinction Between Sections 189, 190 and 191 BNS

Q45. What is the difference between Section 189 and Section 190?

Answer:

Section 189 — Unlawful Assembly

Section 189 defines an unlawful assembly and penalises specified forms of membership and associated conduct.

Its principal focus is the formation and membership of a group with a prohibited common object.

Section 190 — Liability for Offences Committed in Prosecution of Common Object

Section 190 deals with the liability of members when an offence is committed by a member of an unlawful assembly:

• In prosecution of the common object; or
• In circumstances where members knew that such an offence was likely to be committed in prosecution of that object.

Section 190 embodies a form of constructive or joint criminal liability.

A member may therefore be liable for an offence personally committed by another member, even without personally performing the criminal act, provided the statutory requirements are satisfied.

Memory Formula

189 = UNLAWFUL ASSEMBLY AND MEMBERSHIP

190 = LIABILITY FOR OFFENCE COMMITTED BY A MEMBER

Q46. What is the difference between Section 189 and Section 191?

Answer:

Section 189 — Unlawful Assembly

The focus is the existence of an assembly of five or more persons having a prohibited common object.

Actual force or violence is not necessarily required.

Section 191 — Rioting

Rioting occurs when force or violence is used by an unlawful assembly, or by a member of it, in prosecution of the assembly’s common object.

Every member of that assembly may then be guilty of rioting under the statutory definition.

Therefore, an unlawful assembly can exist without rioting, but rioting under Section 191 requires the existence of an unlawful assembly.

Memory Formula

UNLAWFUL ASSEMBLY + FORCE OR VIOLENCE IN PROSECUTION OF COMMON OBJECT = RIOTING

Key Provisions (Study Notes)

Q47. What are the most important principles to remember about Section 189?

Answer:

Principle 1 — Minimum number

An unlawful assembly requires five or more persons.

Principle 2 — Common object

The members must possess a common object falling within Section 189(1).

Principle 3 — Five prohibited objects

The objects concern overawing authority, resisting law, committing offences, interfering with property or rights through criminal force, and compelling conduct through criminal force.

Principle 4 — Subsequent unlawfulness

An initially lawful assembly may become unlawful when its common object changes.

Principle 5 — Mere presence

Presence alone does not automatically establish membership.

Principle 6 — Knowledge and intentional association

Section 189(2) requires awareness of the facts making the assembly unlawful and intentional joining or continuation.

Principle 7 — Dispersal orders

Sections 189(3) and 189(5) deal with remaining in or joining assemblies after lawful dispersal commands, but they apply in different circumstances.

Principle 8 — Deadly weapons

Section 189(4) separately penalises armed membership.

Principle 9 — Recruitment and harbouring

Sections 189(6) to 189(9) extend criminal liability to recruitment, harbouring and being hired for prohibited activities.

Principle 10 — Relationship with Sections 190 and 191

Section 190 concerns liability for offences committed in prosecution of the common object, while Section 191 concerns rioting.

Quick Revision Notes

Q48. What are the punishments under Section 189?

Answer:

Section 189(2): Membership of unlawful assembly — imprisonment up to six months, or fine, or both.

Section 189(3): Joining or continuing after lawful dispersal command — imprisonment up to two years, or fine, or both.

Section 189(4): Armed membership — imprisonment up to two years, or fine, or both.

Section 189(5): Continuing in an assembly likely to disturb public peace after dispersal command — imprisonment up to six months, or fine, or both.

Section 189(6): Hiring or arranging persons for unlawful assembly — punishable as a member and for covered offences committed in pursuance of the recruitment.

Section 189(7): Harbouring recruited persons — imprisonment up to six months, or fine, or both.

Section 189(8): Being hired, offering or attempting to be hired for prohibited acts — imprisonment up to six months, or fine, or both.

Section 189(9): Being hired to go armed, or offering to go armed — imprisonment up to two years, or fine, or both.

All specified imprisonment terms under Sections 189(2) to 189(5) and 189(7) to 189(9) may be of either description.

Q49. What is the procedural classification of Section 189?

Answer:

According to the supplied classification:

Sections 189(2) to 189(5)

Cognizable.

Bailable.

Triable by any Magistrate.

Section 189(6)

Cognizable.

Bailable or non-bailable according to the offence involved.

Triable by the court competent to try the relevant offence.

Sections 189(7) to 189(9)

Cognizable.

Bailable.

Triable by any Magistrate.

Section 189(1) primarily defines an unlawful assembly rather than prescribing a separate punishment.

Exam Traps

Q50. What common mistakes should students avoid when studying Section 189?

Answer:

Exam Trap 1 — Assuming five persons automatically constitute an unlawful assembly

Incorrect.

Five or more persons must share one of the prohibited common objects.

Exam Trap 2 — Assuming actual violence is always necessary

Incorrect.

An unlawful assembly may exist without actual violence.

Exam Trap 3 — Confusing common object with mere common presence

Incorrect.

The common object must be established through the evidence.

Exam Trap 4 — Assuming an assembly must be unlawful from the beginning

Incorrect.

The Explanation expressly recognises that a lawful assembly may subsequently become unlawful.

Exam Trap 5 — Assuming every spectator is a member

Incorrect.

Mere presence does not automatically establish knowing and intentional membership.

Exam Trap 6 — Assuming five convictions are always necessary

Incorrect.

At least five participants must be established, but all need not necessarily be convicted or identified.

Exam Trap 7 — Confusing Sections 189(3) and 189(5)

Section 189(3) concerns an unlawful assembly commanded to disperse.

Section 189(5) concerns an assembly of five or more persons likely to disturb public peace after a lawful dispersal command, subject to its Explanation.

Exam Trap 8 — Assuming Section 189(6) has a fixed maximum imprisonment of six months

Incorrect.

Section 189(6) creates liability by reference to membership and covered offences.

Exam Trap 9 — Assuming every member must personally commit violence under Section 190

Incorrect.

Section 190 may impose liability for offences committed by another member where its common-object or knowledge requirements are satisfied.

Exam Trap 10 — Treating unlawful assembly and rioting as identical

Incorrect.

Section 189 concerns unlawful assembly.

Section 191 requires force or violence in prosecution of the common object.

Final Memory Formula

Section 189 — Unlawful Assembly

FIVE OR MORE PERSONS

COMMON OBJECT

ONE OF FIVE PROHIBITED OBJECTS

UNLAWFUL ASSEMBLY

Five prohibited objects:

OVERAWE → RESIST → OFFENCE → PROPERTY/RIGHT → COMPEL

Sub-section memory sequence:

189(1) — DEFINE

189(2) — JOIN

189(3) — DISOBEY DISPERSAL

189(4) — ARMED MEMBER

189(5) — PUBLIC PEACE DISPERSAL

189(6) — HIRE

189(7) — HARBOUR

189(8) — BE HIRED

189(9) — GO ARMED

Key Takeaway

Section 189 of the Bharatiya Nyaya Sanhita, 2023 establishes the legal framework governing unlawful assemblies.

Its foundation is the combination of five or more persons and a shared common object falling within one of the five prohibited categories.

The section distinguishes ordinary membership from aggravated forms of conduct, including armed membership, disobedience of lawful dispersal commands, hiring participants and harbouring persons recruited for unlawful assemblies.

The provision must also be understood alongside Section 190, which addresses liability for offences committed in prosecution of a common object, and Section 191, which deals with rioting.

The central examination principle is that an unlawful assembly is determined not merely by the number of persons gathered, but by the prohibited common object that unites them.