S.149 IPC | Supreme Court Explains Tests To Determine If Bystander Was Member Of Unlawful Assembly With Common Object

The Supreme Court on Tuesday (October 7) observed that mere presence at the crime scene would not ipso facto render a person a member of the unlawful assembly to book him under Section 149 IPC. The Court clarified that the liability would shift to the bystander only when he shared the common object with the unlawful assembly.

A bench of Justice JB Pardiwala and Justice R Mahadevan acquitted 10 individuals who were convicted for the 1988 violent community clash in Bihar's Katihar District, after finding that the prosecution failed to prove that they shared a common object with the unlawful assembly. An FIR under Sections 148, 149, 307, and 302 of the IPC was lodged against them.

“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. The test to determine whether a person is a passive onlooker or an innocent bystander is the same as that applied to ascertain the existence of a common object.”, the court said.

The Court laid down the test to determine whether the bystander shared a common object with the unlawful assembly, such as:

“a. the time and place at which the assembly was formed;

b. the conduct and behaviour of its members at or near the scene of the offence;

c. the collective conduct of the assembly, as distinct from that of individual members;

d. the motive underlying the crime;

e. the manner in which the occurrence unfolded;

f. the nature of the weapons carried and used;

g. the nature, extent, and number of the injuries inflicted, and other relevant considerations.”

The judgment authored by Justice Pardiwala in a detailed judgment laid down a rule of caution that in cases involving a large mob, the evidence against each accused must be scrutinized with "utmost care" to avoid convicting "passive onlookers" or "innocent bystanders." It endorsed the principle laid down in Masalti v. State of Uttar Pradesh, 1964 SCC OnLine SC 30 that the consistent account of at least two or three reliable witnesses should be required to convict an individual in such complex cases.

“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.”, the court said.

Since the prosecution failed to meet this standard for the appellants, with the Court finding the evidence against them vague, omnibus, and insufficient to prove they shared the murderous common object of the mob, they were acquitted of the charges.

Cause Title: ZAINUL VERSUS THE STATE OF BIHAR

Citation : 2025 LiveLaw (SC) 979

Click here to read/download the judgment

Appearance:

For Appellant(s) : Mr. Ashwani Kumar Singh, Sr. Adv. Mr. Ashish Anshuman, Adv. Mr. Chandan Malav, Adv. Ms. Prerna Singh, AOR Mr. Rauf Rahim, Sr. Adv. Mr. Ambar Qamaruddin, Adv. Mr. Tejasvi Kumar, Adv. Mrs. M. Qamaruddin, AOR

For Respondent(s) : Mr. Divyansh Mishra, Adv. Mr. Yoshit Jain, Adv. Mr. Manish Kumar, AOR Ms. Himani Choudhary, Adv. Mr. Samir Ali Khan, AOR Mr. Pranjal Sharma, Adv. Mr. Anil Kumar Verma, Adv.