IPC 149 in the new BNS 2023

If you have been named in an FIR or notice under this section, the section number alone does not decide the outcome — the facts, the evidence and the procedure do. Many cases turn on procedural lapses, bail strategy and the exact ingredients of the offence.

This is the provision that carries the real weight in every crowd prosecution, because it makes every member of an unlawful assembly guilty of an offence committed by any member in prosecution of the common object — including murder. Under the BNS it sits at Section 190, and like its counterpart on common intention it is not an offence in itself but a rule of liability read with a substantive section.

What the section requires

For the offence to be made out, these ingredients have to be established:

• an unlawful assembly of five or more persons existed
• an offence was committed by a member of that assembly
• the offence was committed in prosecution of the common object of the assembly, or the members knew it was likely to be committed in prosecution of that object
• the accused was a member of the assembly at the time the offence was committed

What changed from the IPC

The provision is carried over essentially unchanged in substance, moving from IPC 149 to BNS 190. Because the language is retained, the extensive Supreme Court authority developed under IPC 149 — on what constitutes a common object, on the meaning of 'knew to be likely', and on the distinction from common intention — continues to apply. Like Section 3(5) on common intention, it prescribes no punishment of its own: the member is punished for the substantive offence.

How this section is distinguished from related offences

The comparison with common intention under BNS 3(5) is the one that decides how these cases are argued. Common intention requires a prior meeting of minds, however briefly formed, and requires participation in the criminal act. Common object requires neither: a member of an unlawful assembly can be liable for an offence they did not participate in and did not agree to, provided it was committed in prosecution of the common object or the members knew it was likely to be committed in prosecution of that object. That second limb is what makes the provision so far-reaching. Conspiracy under BNS 61 is different again, requiring an agreement but not membership of any assembly. Where the assembly numbered fewer than five, this provision cannot apply at all, and the prosecution must fall back on common intention.

How the case proceeds

Because Section 190 attaches to a substantive offence, everything procedural follows that offence. A person charged under BNS 103 read with 190 faces trial for murder before a Court of Session, with the punishment for murder, notwithstanding that they may not have touched the deceased. This is why the addition of Section 190 to a charge sheet transforms the position of every person named in a crowd case, and why the framing of charges is the most important stage in these prosecutions.

Evidence that usually decides these cases

The common object is inferred from the conduct of the assembly as a whole rather than proved directly: how it gathered, whether it was armed and with what, what was said or shouted, the direction it moved, and how it behaved before and after the offence. Whether the offence committed fell within that object, or went beyond it, is argued on the same material. On individual membership, the evidence is the same identification evidence that dominates all crowd cases, with the same weaknesses — whether names appear in the earliest documents, whether the witness had a genuine opportunity to observe, and whether video material supports or contradicts the account. Because the exposure is determined by the substantive offence, the medical and forensic evidence relating to that offence is equally central.

How courts approach sentencing

Section 190 prescribes no punishment. The member is punished for the substantive offence committed in prosecution of the common object, as though they had committed it. Where that offence is murder, the punishment is that for murder.

Defences that commonly apply

Three lines run through these cases. The first is numbers: fewer than five persons means no unlawful assembly and the provision cannot apply. The second is membership: establishing that the accused was not part of the assembly, or had left before the offence was committed, is a complete answer, and it depends on objective material rather than assertion. The third, and the most frequently argued, is that the offence went beyond the common object — that an individual acted on their own, using a weapon or in a manner that formed no part of what the assembly gathered to do and that other members had no reason to anticipate. Courts have repeatedly held that liability under this provision does not extend to such an excess.

How a case under this section typically progresses

The timeline is that of the substantive offence, and where that offence is serious the case is tried by a Court of Session and takes years, particularly with many accused. The decisive stage for an individual is the framing of charges, where discharge is sought on the ground that membership is not made out or that no reliable identification exists. The question of whether the offence fell within the common object is usually argued fully at the close of the prosecution evidence.

Documents worth gathering early

Gather objective material fixing your presence, movements and departure: call detail records and tower data, travel and transport records, attendance records, and any transaction made elsewhere during the relevant period. Obtain the FIR as originally recorded and establish whether your name was in it from the outset. Collect all video and photographic material from the scene, including news and bystander footage, since it is the material most capable of showing whether a particular person was present when the offence occurred. Where you withdrew before the incident, anything fixing the time is directly to the point. The medical and forensic material relating to the substantive offence should also be obtained, since the argument that the act went beyond the common object is built from it.

Note on bail and cognizability. Whether an offence is cognizable, and whether it is bailable, is set by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, not by the BNS section itself. Because that classification decides whether police can arrest without a warrant and how bail is approached, check it for your specific section with an advocate rather than relying on a general summary.

If you have been named under this section

The question is not what you did but whether you were a member of the assembly at the time the offence was committed, and whether that offence was within the common object or was something members knew was likely in prosecution of it. Establishing that you were not a member, or had left before the offence occurred, is the complete answer. Where you were a member, the argument shifts to whether the offence committed fell within the common object at all, or was an independent act by an individual going beyond it — a distinction courts draw regularly and which is frequently the difference between a murder conviction and an acquittal.

Common misunderstandings

"You cannot be convicted of murder without participating."
You can. Where an offence is committed in prosecution of the common object of an unlawful assembly, every member is guilty of that offence, whatever their personal role.

"Common object and common intention are the same."
They are not. Common intention requires a shared plan and participation. Common object requires neither, and extends to offences members merely knew were likely in prosecution of the object.

"Section 190 is an offence you can be charged with alone."
It is not. Like Section 3(5), it is a rule of liability read with a substantive offence and carries no punishment of its own.

"Any offence committed during a riot attaches to everyone."
Not automatically. It must have been committed in prosecution of the common object, or be something members knew was likely in prosecution of it. An independent act going beyond the object does not attach.

Related BNS sections

• BNS 190 — Every member of an unlawful assembly guilty of an offence committed in prosecution of the common object
• BNS 189 — Unlawful assembly (IPC 143)
• BNS 191 — Rioting (IPC 147)
• BNS 3(5) — Common intention (IPC 34)

Which code applies to your case

The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 with effect from 1 July 2024, and the change is not retrospective. The date the offence is alleged to have been committed decides which code governs it. An offence alleged to have occurred on or after 1 July 2024 proceeds under the BNS. An offence alleged to have occurred before that date continues to be investigated, tried, appealed and punished under the IPC, even where the FIR was registered later. Cases from the transition period frequently cite both numbering systems, which is why the old section number remains worth knowing.

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General information for understanding the IPC→BNS change, not legal advice. The BNS restructured many offences — confirm the exact section, sub-section and punishment with a licensed advocate.