Report No. 42

8.11. Section 146.-

Section 146 refers to "force or violence". Judicial decisions have construed force in the light of the definition in section 349, as meaning the use of force on a human being, and "violence" in a wider sense, as meaning the use of force on inanimate objects also.-an interpretation which appears to be right and need not be disturbed.

A suggestion was made that threat of force or violence should be added. Such an amendment would practically equate section 143 with section 146, because the threat of force or violence is almost always evident in the formation of an unlawful assembly and a necessary element of its common object. No such addition is, therefore, necessary in section 143.

8.12. Section 147.-

The maximum punishment under section 147 for rioting is imprisonment for two years. This appears to be adequate. We considered a suggestion that a sentence of imprisonment should be mandatory for the offence but decided that it would not be advisable to do so.

8.13. Preparation to commit rioting should be punishable.-

We think, however, that preparation to commit rioting should be made punishable, as it is desirable that rioting should be checked at the,,earliest stage. Preparatory acts, like collecting sticks, knives and other wvarons of offence, acid bulbs, brickbats etc., by anti-social elements bent on mischief may come to the notice of the police, but they may not be able to take any effective action even when the object of such activity is plain to them. We, therefore, recommend the insertion of a section after section 147 as follows.-

"147A. Making preparation to commit rioting.- Whoever makes any preparation for committing rioting1 shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."

1. Cf. section 399 which defines the offence of making preparation to commit dacoity.

8.14. Section 148.-

As regards section 148, the question whether the principle of section 149 should be applied to an offence under section 148 has been considered in several decisions. The majority of the High Courts have held that section 149 is inapplicable to an offence under section 148. We agree with that view, and do not consider any amendment to be necessary. For this offence also, we do not consider that imprisonment should be made mandatory.

8.15. Section 149.-

Section 149, which imposes vicarious liability on every member of an assembly for certain offences committed by any member, consists of two parts. The first part deals with an offence committed by a member in prosecution of the common object of the assembly, while the second is concerned with an offence known to be likely to be committed in prosecution of that object.

In the first part, the offence is one which has already been agreed upon and is necessarily involved in the common object. The second part relates to offences not expressly agreed upon but known to be likely to be committed in accomplishing the common object. This dichotomy is in line with the scheme of the Code, which throughout mentions specifically cases of intention, and then deals with knowledge, for example, see the various clauses of section 299. This is also convenient in practice, because those who have to administer the law could place the case in the proper compartment. Therefore, though there may be theoretical objections to the existing wording, we do not consider an amendment to be necessary.

Where a major offence is committed by one member of an unlawful assembly, but the common object of the assembly extends only to a lesser offence can the other members of the assembly be convicted of that lesser offence, by virtue of section 149? The question usually arises in rioting cases where one member of the assembly causes death of the victim, while its common object was only to cause him grievous hurt. There used to be a controversy on the subject1 but now, the Supreme Court2 has held that a conviction for the lesser offence is permissible. The principle of section 38 has been made applicable to section 149. No amendment is, therefore, required to clarify this point.

1. For example, see Ram Charan Rai, AIR 1946 Pat 242 (246).

2. Shambhu Nath, AIR 1960 SC 1725.

8.16. Section 150.-

Section 150 consists of two parts. The first part punishes the offender who hires, engages etc. persons to become members of an unlawful assembly. This part apparently refers to section 143 and is non-controversial. The hirer is punishable as a member even though, in fact, he was not a member. In form, the liability is vicarious, but it is not objectionable in principle, because hiring persons to become members of an unlawful assembly ought to be punishable.

The latter part makes the hirer punishable also for any offence committed in pursuance of the hiring in the same manner as if he had been a member of the assembly, or as if he had committed the offence himself. The interpretation of this part of the section presents some difficulty. If a narrow view is taken, it may be urged that the hirer will be liable for the offence actually committed by the hired person as a member of the unlawful assembly in pursuance of such hiring, and not for an offence which the hired person can be constructively held to have committed under section 149 as a member of the unlawful assembly. If however, a wider construction is given, the constructive liability of the hirer will attach itself, not only to the actual offence committed by the hired person, but also to an offence for which the hired person may be constructively liable as a member of the assembly.

We, however, do not consider it necessary to alter the language of this section with a view to clarifying any doubt which may arise as to which of the aforesaid two constructions is intended. The paucity of decisions under this section is presumably due to the fact that very few cases of operating through hired men are brought to light. The hirer always takes care to remain in the background without disclosing his identity. In any case, the words "in pursuance of such hiring" occurring in this section clarify the position to some extent by narrowing the liability of the hirer to those offences of the hired person which can be said to be in pursuance of such hiring.

8.17. Sections 151 and 152.- No change is needed in sections 151 and 152.

8.18. Section 15.-amendment suggested.-

Section 153, in describing the mens rea, uses two expressions 'malignantly' and 'wantonly', neither of which is to be found elsewhere in the Code. Further, these expressions are imprecise. In particular, the adverb 'wantonly' is not a term of art; the Shorter Oxford English Dictionary gives eight different meanings to the wor.-lewdly, lasciviously, abortively, lightheartedly, recklessly, unadvisedly, without regard for consequences and wilfully. The last is probably the only sense in which the word can be understood in the context of section 153.

Having regard to the further requirement under the section that there must be an illegal act intended or known to be likely to cause a riot, it does not seem to be necessary to have the requirements indicated by the expressions "malignantly" and "wantonly". In practice, these expressions do not add anything to the other requirements of the section. It may also be noted that the punishment under the section is not severe.-imprisonment upto one year or, six months, according to a riot is or is not committed.

We, therefore, recommend that the words "malignantly or wantonly" may be omitted from section 153.

8.19. Section 153A.-

Section 153A punishes (a) the act of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste, community or any other ground, and (b) acts prejudicial to the maintenance of harmony between different groups or castes or communities, if the acts disturb the public tranquillity.

8.20. Legislative history of the section.-

The section has a long history. It started as a provision designed to punish acts promoting enmity or hatred between "different classes of Her Majesty's subjects" which later became "different classes of the citizens of India". There was also an Explanation below the section, the effect of which was to save honest criticism without malicious intention. Barring the verbal adaptations made from time to time, the section retained this shape till 1961. The amendment of 19611 made three changes in the original section. The term 'classes' was replaced by religious, racial or language groups or castes or communities'. Secondly, the scope of the section was enlarged, by making it an offence also for anyone to do any act which is prejudicial to the maintenance of harmony between different religious, racial or language groups, or castes or communities and which is likely to disturb public tranquillity. Thirdly, the Explanation was omitted.

In 1969,2 the section was expanded further, and the reasons for the amendment were stated3 as follows.-

"Promoting enmity between different groups on grounds of religion, race, language, etc., is made an offence under section 153A of the Indian Penal Code. It is proposed to include therein promoting enmity between different groups on grounds, such as, place of birth, or residence as well. It is also proposed to widen the scope of the provision so as to make promotion of disharmony or feelings of an offence punishable thereunder. Clause (b) of the said section provides for the punishment for doing acts prejudicial to the maintenance of harmony between different groups. That provision is also proposed to be widened so as to include acts prejudicial to the maintenance of harmony between different regional groups as well. It is also proposed to provide for enhanced punishment for any such offence committed in a place of worship."

1. Act 41 of 1961.

2. Act 35 of 1969.

3. Gazette of India, 27th August, 1968, Pt. 2, section 2, Extra., p. 1052.

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