Section 149 IPC vs Section 190 BNS — Unlawful Assembly and Common Object

In India, Section 190 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced Section 149 of the Indian Penal Code, 1860 (IPC) on 1 July 2024, in identical words. The unlawful-assembly and rioting offences (IPC 141–148) are regrouped into Sections 189 and 191 BNS. Armed rioting now carries up to five years instead of three.

At a glance

The CrPC First Schedule classified Sections 143 to 149 IPC the same way; only the Section 191(3) maximum changes.

What changed

• Identical — Section 190 (IPC 149). "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." Not a word differs.
• Minor edit — the definition (Section 189(1), IPC 141). The five common objects labelled "First" to "Fifth" become clauses (a) to (e). In clause (a), "the Central or any State Government" becomes "the Central Government or any State Government". The Explanation (an assembly lawful when it met may later become unlawful) is unchanged.
• Minor edit — membership merged with its punishment (Section 189(2), IPC 142 and 143). The definition of a member and the six-month punishment now sit in one sub-section: "…is said to be a member of an unlawful assembly and such member shall be punished…".
• Minor edit — Section 189(3) (IPC 145). The India Code IPC text reads "may extent to two years"; the BNS reads "may extend". The punishment is unchanged.
• Minor edit — renumbered cross-references. In Section 189(5) (IPC 151) the Explanation now refers to "sub-section (1)" and "sub-section (3)" for "section 141" and "section 145", and "will be" becomes "shall be". In Section 189(8) and (9) (IPC 158) "section 141" becomes "sub-section (1)", and the armed limb becomes a separate sub-section referring to "sub-section (8)".
• Identical — Sections 189(4), (6), (7) and 191(1), (2) (IPC 144, 150, 157, 146, 147).
• Modified — Section 191(3) (IPC 148). "a term which may extend to three years" becomes "five years" for rioting armed with a deadly weapon or anything likely to cause death used as a weapon of offence.
• Minor edit — compounding (cross-reference renumbered). Section 359(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) lets a compoundable offence be compounded "in like manner" where the accused is liable under Section 190 BNS, as Section 320(3) of the Code of Criminal Procedure, 1973 (CrPC) did for Section 149 IPC. None of Sections 189 to 191 is itself in the compounding tables.

Statutory text (relevant extract)

Extract, Section 148 IPC (repealed from 1 July 2024):

Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Extract, Section 189(1) opening words and Section 191(1) and (3) BNS:

189. (1) An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is—

190. (1) 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.

(3) Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

How it works — the elements

Step 1: an unlawful assembly (Section 189(1)). Five or more persons whose common object is one of the five listed in clauses (a) to (e): overawing a Government, Parliament, a State Legislature or a public servant by criminal force or show of it; resisting the execution of any law or legal process; committing mischief, criminal trespass or other offence; taking possession of property, denying a right of way or water, or enforcing a right, by criminal force or show of it; or compelling a person, by the same means, to act or refrain.

Step 2: membership (Section 189(2)). A member is one who, "being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it".

Step 3: the offence and its link to the common object (Section 190). An offence committed by any member either:

• First limb — "in prosecution of the common object"; or
• Second limb — "such as the members of that assembly knew to be likely to be committed in prosecution of that object".

Step 4: timing. Liability attaches to every person who is a member "at the time of the committing of that offence".

If force or violence is used in prosecution of the common object, every member is also guilty of rioting (Section 191(1)).

The difference from common intention under Section 3(5) BNS is covered in the FAQ below and on the common intention page.

What this means in practice

For the investigating officer and prosecutor

• Establish the numbers (five or more), the common object under a specific clause of Section 189(1), and each accused's membership at the time of the offence. The charge for the substantive offence then reads "read with Section 190 BNS".
• Decide which limb of Section 190 is relied on. For the second limb, lead evidence of what the members knew: the weapons carried, words used, and conduct before and at the scene (Mizaji, Roy Fernandes).
• An Executive Magistrate, the officer in charge of a police station or, in his absence, a police officer not below the rank of sub-inspector may command an unlawful assembly to disperse under Section 148 BNSS. On a reading of the text, that is the command Sections 189(3) and 189(5) refer to.

For the accused and defence advocate

• The core questions are membership and the scope of the common object. Presence in an assembly does not necessarily make a person a member of an unlawful assembly (Masalti, explaining Baladin). If the offence went beyond the common object, the second limb requires proof that the accused knew it was likely (Roy Fernandes).
• Acquittal of some co-accused does not by itself defeat Section 190 if the court finds five or more persons formed the assembly (Roy Fernandes, para 10).
• Bail under Section 190 follows the substantive offence. The Section 189 and 191 offences themselves are bailable, except Section 189(6) (hiring), which the BNSS First Schedule makes bailable or non-bailable according as the offence.

Judgments that still matter

Mizaji and Another v. The State of U.P., [1959] Supp. 1 S.C.R. 940 (1958 INSC 122) — 18 December 1958. Five men, one carrying a pistol, went to take forcible possession of a field; when resisted, Mizaji shot a man dead. Kapur J., for a Bench with Jafer Imam and S.K. Das JJ., explained the two parts of Section 149. The first requires an offence committed with a view to accomplish the common object and "connected immediately" with it. The second covers an offence the members knew was likely, where "know" "does not mean a mere possibility, such as might or might not happen". The Court said that "The distinction between the two parts of s. 149, Indian Penal Code cannot be ignored or obliterated". It also held that no preconcert by a meeting of members is needed: "it is enough if it is adopted by all the members and is shared by all of them". Given the weapons and threats, the murder was immediately connected with the common object, and the appeals were dismissed. The report shows no paragraph numbers.

Masalti v. State of U.P., [1964] 8 S.C.R. 133 (1964 INSC 149) — 4 May 1964. Members of a village faction killed five people. Gajendragadkar C.J., for four Judges, held that an earlier observation in Baladin could not be read as a general rule that membership requires proof of an overt act. What must be proved is that the accused "was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object". Convictions were upheld; three death sentences were altered to life imprisonment. The report shows no paragraph numbers.

Lalji & Ors. v. State of U.P., [1989] 1 S.C.R. 130 (1989 INSC 12) — 17 January 1989. K.N. Saikia J., for a Bench with K. Jagannatha Shetty J., held that Section 149 creates a specific and distinct offence imposing constructive or vicarious liability. It is not necessary that all members do some overt act; "the prosecution is not obliged to prove which specific overt act was done by which of the accused"; and "the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge" (report pages 135-136). Acquitting members for want of corroboration of their individual part was held to be an error, and the appeal was dismissed.

Roy Fernandes v. State of Goa & Ors., [2012] 1 S.C.R. 477 (2012 INSC 62) — 1 February 2012. T.S. Thakur J. (for a Bench with Asok Kumar Ganguly J.) held at para 10 that acquittal of three of five accused made no material difference while five persons formed the assembly. At para 12 the Court said the section "is in two parts". On the second limb, the assembly's object was to stop the victim putting up a fence. The appellant was unarmed, and there was no evidence he knew a co-accused carried a knife (paras 16, 23). The murder conviction under Section 302 read with Section 149 IPC was set aside. Convictions under Sections 323 and 325 IPC were affirmed with the sentence reduced to the period undergone, and compensation was directed to the deceased's widow and two others (para 31).

Section 190 BNS repeats the words these judgments construe, and Section 189 the definitions they rely on, so on a reading of the text their reasoning remains relevant.

Which law applies to your case

Section 358(2) BNS provides that the repeal of the IPC does not affect penalties incurred or proceedings in respect of offences under it, which may be instituted, continued or enforced "as if that Code had not been repealed". On a reading of that text, an offence committed before 1 July 2024 is charged under Sections 141 to 149 IPC, and pending investigations or trials continue under the CrPC (Section 531(2)(a) BNSS). Article 20(1) of the Constitution bars a penalty greater than the law in force when the offence was committed; on a reading of that Article, the five-year maximum in Section 191(3) would not be applied to armed rioting before 1 July 2024. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS equivalent of Section 149 IPC? Section 190 of the Bharatiya Nyaya Sanhita, 2023 replaces Section 149 of the Indian Penal Code, 1860 from 1 July 2024, in identical words. If an offence is committed by any member of an unlawful assembly in prosecution of its common object, or such as the members knew to be likely to be committed in prosecution of that object, every member at that time is guilty of that offence.

Where are Sections 141 to 148 IPC in the BNS? The definition of unlawful assembly (Section 141 IPC) is Section 189(1) BNS. Membership and its punishment (Sections 142 and 143) are Section 189(2), continuing after a command to disperse (Section 145) is Section 189(3), and joining armed (Section 144) is Section 189(4). Rioting and its punishments (Sections 146 to 148) are Section 191(1) to (3) BNS.

Has the punishment for rioting changed under the BNS? Rioting under Section 191(2) BNS remains punishable with up to two years, or fine, or both, as under Section 147 IPC. Rioting armed with a deadly weapon under Section 191(3) BNS is now punishable with up to five years, or fine, or both; Section 148 IPC allowed up to three years. Both remain cognizable and bailable.

Is an offence charged with Section 190 BNS bailable? Section 190 has no fixed classification. The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 says the punishment is the same as for the offence, that it is cognizable or non-cognizable and bailable or non-bailable according as that offence is, and that it is triable by the court that tries that offence. The CrPC First Schedule treated Section 149 IPC the same way.

Must every member of the unlawful assembly have done an overt act? No. In Lalji v. State of U.P. (1989 INSC 12) the Supreme Court held that it is not necessary that all members must do some overt act, and that the basis of constructive guilt under Section 149 IPC is membership of the unlawful assembly with the requisite common object or knowledge. Membership itself must be proved; Masalti v. State of U.P. (1964 INSC 149) requires proof that the accused was one of the persons constituting the assembly and shared its common object.

What if the offence committed was not the common object of the assembly? Section 190 BNS has a second limb: members are guilty of an offence they knew to be likely to be committed in prosecution of the common object. In Roy Fernandes v. State of Goa (2012 INSC 62) an assembly aimed at stopping a fence; one member stabbed the victim, and the unarmed appellant's murder conviction under Section 302 read with Section 149 IPC was set aside because there was no evidence he knew murder was likely.

What is the difference between Section 190 and Section 3(5) BNS? Section 3(5) BNS (formerly Section 34 IPC) needs several persons doing a criminal act in furtherance of the common intention of all, and has no minimum number. Section 190 BNS needs an unlawful assembly of five or more persons with a common object listed in Section 189(1). In Mizaji v. State of U.P. (1958 INSC 122) the Supreme Court said the common object need not be preconcerted by a meeting of members; it is enough that all members adopt and share it.

Which law applies to rioting committed before 1 July 2024? Section 358(2) BNS saves penalties and proceedings under the IPC as if it had not been repealed, so on a reading of that text an offence committed before 1 July 2024 is charged under Sections 141 to 149 IPC. Article 20(1) of the Constitution bars a heavier penalty than the law then in force, so, on a reading of that Article, the five-year maximum in Section 191(3) BNS would not apply to armed rioting before that date.

Related

• Common intention: IPC 34 vs BNS 3(5)
• Criminal conspiracy: IPC 120A-120B vs BNS 61
• Murder: IPC 302 vs BNS 103
• Mob lynching — a new provision in BNS 103(2)
• Prohibitory orders: Section 144 CrPC now BNSS 163
• Offence before 1 July 2024 — which law applies
• IPC to BNS master table
• Sections 6–52A IPC vs Sections 2–3 BNS — General Explanations and Definitions
• Section 152 IPC vs Section 195 BNS — Assaulting or Obstructing a Public Servant Suppressing a Riot
• Sections 129–132 CrPC vs Sections 148–151 BNSS — Dispersal of Unlawful Assemblies

Sources

• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 3(5), 189 to 192 and 358.
• Indian Penal Code, 1860 (India Code text): Sections 141 to 151, 157 and 158.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 148, 359 and 531(2)(a); First Schedule entries for Sections 189 to 192 BNS.
• Code of Criminal Procedure, 1973: Section 320(3); First Schedule entries for Sections 143 to 151 IPC.
• Constitution of India: Article 20(1).
• Judgments read in full text: Mizaji v. State of U.P. (S_1959_1_940_952_EN.md); Masalti v. State of U.P. (1964_8_133_152_EN.md); Lalji v. State of U.P. (1989_1_130_137_EN.md); Roy Fernandes v. State of Goa (2012_1_477_503_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.