Reaffirming that criminal guilt must rest on proof and not presumption, the Supreme Court of India on October 7 held that mere presence at the scene of a crime does not automatically make a person a member of an unlawful assembly under Section 149 of the Indian Penal Code (IPC).
The Court ruled that a person can only be convicted under Section 149 if the prosecution establishes—either directly or through credible circumstances—that the accused shared the “common object” of the assembly that committed the offence.
The bench of Justices J.B. Pardiwala and R. Mahadevan delivered the verdict allowing two criminal appeals filed by ten individuals who had been convicted under Sections 302 (murder) and 149 (unlawful assembly) for a violent 1988 clash in Katihar district, Bihar, arising from a dispute over government-allotted agricultural land.
The appellants had been sentenced to life imprisonment by the Katihar Sessions Court, and the Patna High Court had upheld the conviction in 2013. The Supreme Court, however, found that the evidence against the accused was “vague, omnibus, and insufficient to establish a shared common object.”
Background: The 1988 Katihar clash
The case originated from a violent altercation on November 20, 1988, in Katihar district, when two groups clashed over the harvesting of paddy on land distributed by the Bihar government. The prosecution alleged that a mob of 400–500 people armed with guns, spears, and sticks attacked the complainant Jagdish Mahato (PW-20) and his brother Meghu Mahato, killing Meghu and another villager, Sarjug Mahato.
Seventy-two individuals were named in the FIR, of whom twenty-four were charge-sheeted. The Katihar Sessions Court convicted twenty-one under Sections 302 and 149 IPC, while the Patna High Court in 2013 upheld the conviction of eleven. The remaining accused approached the Supreme Court, arguing that they were innocent villagers wrongly implicated merely for being present.
Supreme Court’s analysis
The limits of constructive liability: Justice Pardiwala, writing for the bench, clarified that Section 149 IPC cannot be invoked mechanically to hold all persons present at the scene guilty. The Court observed that presence and participation are not synonymous, and that criminal liability under Section 149 arises only when an accused shares the common object of the assembly.
“At the same time, mere presence at the scene does not ipso facto render a person a member of the unlawful assembly, unless it is established that such an accused also shared its common object. A mere bystander, to whom no specific role is attributed, would not fall within the ambit of Section 149 of the IPC. The prosecution has to establish, through reasonably direct or indirect circumstances, that the accused persons shared a common object of the unlawful assembly.” (Para 54)
The seven-factor test for determining common object: To guide future courts, the Supreme Court formulated a seven-part test to determine whether a person’s presence amounted to participation in an unlawful assembly:
- The time and place where the assembly was formed;
- The conduct and behaviour of its members near the scene;
- The collective conduct of the assembly, as distinct from that of individual members;
- The motive underlying the crime;
- The manner in which the incident unfolded;
- The nature of weapons carried and used; and
- The nature, extent, and number of the injuries inflicted, and other relevant considerations.
The Court emphasised that these indicators must be objectively applied to ensure that constructive liability does not turn into collective punishment.
“Rule of Caution” in mob prosecutions: In a pointed caution to trial courts, the bench noted that cases involving large mobs often carry a risk of over-implication and require “utmost care” to distinguish between actual participants and passive onlookers.
“The law on the point can be summarized to the effect that where there are general allegations against a large number of persons, the court must remain very careful before convicting all of them on vague or general evidence. Therefore, the courts ought to look for some cogent and credible material that lends assurance. It is safe to convict only those whose presence is not only consistently established from the stage of FIR, but also to whom overt acts are attributed which are in furtherance of the common object of the unlawful assembly.” (Para 61)
Citing Masalti v. State of Uttar Pradesh (1964), the bench reiterated that in cases with numerous accused, courts should rely on at least two or three consistent and trustworthy witnesses before confirming guilt.
Justice Pardiwala underscored that this caution does not dilute the principle of constructive liability, but ensures its fair and judicious application, particularly in incidents arising from mob violence or communal tension.
“This Court, as a matter of caution, has enunciated parameters to safeguard innocent spectators or passive onlookers from being convicted merely on account of their presence. This cautionary rule, however, does not dilute the doctrine of constructive liability, under which proof of an overt act by each individual is not indispensable. Where the presence of a large number of persons is established and many are implicated, prudence mandates strict adherence to this rule of caution.” (Para 55)
Findings and acquittal
The Court found that the prosecution had failed to link the ten appellants to the common object of the mob or to any specific act of violence. The evidence, it said, was “vague, contradictory, and omnibus in nature,” insufficient to prove their participation beyond reasonable doubt.
The Court also expressed concern over the casual manner in which the investigating authorities had registered and pursued the case, noting inconsistencies between witness accounts and medical evidence.
“It cannot be said that the prosecution has proved its case beyond reasonable doubt. A case attains that standard when all its links are firmly established and recognizable to the eyes of a reasonable person. In the present matter, the prosecution version does not appear to stem from a truthful narration of facts.” (Para 82)
Clarifying “Common Object”
The verdict further explained that the phrase “in prosecution of the common object” means that the crime must have been directly connected to or committed in furtherance of the assembly’s object. Liability arises only if members intended or knew that the offence was likely to be committed.
“While ascertaining this fact, it is of utmost importance to consider whether the assembly consisted of some persons who were merely passive onlookers who had joined the assembly as a matter of idle curiosity, without the knowledge of the common object of the assembly, since such persons cannot be said to be members of the unlawful assembly. We say so because, the nucleus of Section 149 is “common object”.” (Para 52)
Significance: A defining standard for mob liability
This judgment marks a major reaffirmation of individualised culpability in collective offences. It establishes that criminal responsibility cannot be imposed by association, and that courts must rigorously differentiate active participants from innocent spectators. The decision will have far-reaching implications for cases involving mob violence, communal clashes, and political protests, where mass arrests and omnibus charges are common.
By setting a structured evidentiary standard, the Court has not only clarified Section 149 IPC but also reinforced the constitutional guarantee of personal liberty against arbitrary criminal liability.
The complete judgment may be read here.
Related:
Free speech, even in bad taste, is protected if no incitement to violence: HP HC