The test will be crucial in determining criminal liability for persons actually belonging to the unlawful assembly rather than those merely being bystanders.
The seven requirements are as follows:
- Time and place at which the assembly was formed.
- Conduct and behaviour of its members at or near the scene of the offence.
- Collective conduct of the assembly, as distinct from that of individual members.
- Motive underlying the crime.
- Manner in which the occurrence unfolded.
- Nature of the weapons carried and used.
- Nature, extent, and number of the injuries inflicted, and other relevant considerations.
“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,” a bench of Justices JB Pardiwala and R Mahadevan said in a recent verdict.
While ipso facto means ‘by that very fact’, Section 149 of the erstwhile law, the Indian Penal Code, deals with the offence: “Every member of unlawful assembly guilty of offence committed in prosecution of common object”.
The provision defines the offence as, “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.”
The bench was acting on the appeal of 10 convicts who challenged their punishment under Section 302 (murder) and Section 149 of the now-defunct law after having received no reprieve from the Patna High Court.
The 10 convicts, along with others, were booked by the local police in Katihar, Bihar in 1988. They were allegedly involved in a brawl over paddy harvest which resulted in two deaths.
All convicts were consequently acquitted by the top court, which found fault with the police’s investigation and raised doubts on the “genuineness of the FIR”.
The bench further said the laying down of the seven parameters was a “matter of caution” 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,” it held.
Supreme Court acquittal: In a significant ruling, Supreme Court lays down test to determine if a person is a part of unlawful assembly or mere bystander. 
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