Holding

The Supreme Court held that the assembly had an unlawful common object to resist law enforcement, the offences were committed in prosecution of that object, and thus Section 149 IPC and Section 3 TADA were correctly applied.

Summary

The case concerns an appeal by Madan Singh and others against their conviction for murder, attempted murder, assault, robbery and offences under the Arms Act and the Terrorist and Disruptive Activities (Prevention) Act (TADA). The police raided a house where about 20‑25 persons were assembled; a gunfight ensued, resulting in the death of a police officer, injuries to several constables and the killing of three of the accused. The trial court held that the assembly had a common object to resist law enforcement and to commit violent acts, applying Section 149 of the IPC and deeming the acts terrorist under Section 3 of TADA. The appellants argued that there was no evidence of a terrorist intent, that the assembly was for self‑defence against higher‑caste attacks, and that Section 149 was inapplicable. The Supreme Court rejected these contentions, finding that the seized arms, literature and the conduct of the accused established a unlawful common object and that the offences were committed in prosecution of that object, thereby upholding the conviction. The appeal was dismissed.

Issues considered

The existence of a common object of an unlawful assembly sufficient to invoke Section 149 IPC.
Whether the acts committed fall within the ambit of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
Whether the prosecution proved that the accused had knowledge of the likely commission of the offences.
Whether the place of occurrence and the recovery of arms were established beyond reasonable doubt.

Legislation cited

Arms Act, 1959s. 25, s. 27, s. 35
Explosive Substances Act, 1908s. 3, s. 4
Indian Penal Code, 1860s. 124A, s. 141, s. 149, s. 302, s. 307, s. 34, s. 352, s. 379
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3, s. 4, s. 5

Subjects

unlawful assemblycommon objectSection 149 IPCTADAterrorismArms Actappeal dismissed

Judgment

A MADAN SINGH
v.
STATE OF BIHAR

APRIL 2. 2004

B [DORA!SWAMY RAJU AND ARIJIT PASA YAT, JJ.]

Penal Code, 186-Sections /./9. 302, 307, 352 and 379-Terrorist and ,.._ '
Dismptive Activities (Prevention) Act, 1987-Sections 3 and 19-Arms Act,
C 1959-Section 27-Assemblage ofextremists with arms and ammunition looted
from police at a particular place and plan to attack their adversaries to kill
them-Raid by police party leading to firing from both sides-As a result
police official died, others injured and also three extremist died-Seizure of
arms, ammunition, several documents, files, letters regarding banned
organi=ations from the place of occurrence-Case of accused that they had
D gathered for reaping singada and also were appre 11ending attack by higher
caste people--Conviction and sentence under !PC, Arms Act and TADA-
Justiflcatio11 of--Held: Evidence and materials sei:::ed establish that criminal }•
acts commi!led in furtheranc~ of common object as such section 149 right~v
applied-literatures sei=ed shows that accused involved in activities covered
E by section 3 of TADA-Hence, conviction and se/1/ence justified.
Penal Code, 1860-Section 1./9-Applicability of-For fastening
constructive liability on members of 11nla11fit! assembl;~General principles-
Discussed.

IVords and Phrases :
F Terrorism '-Meaning of in the context of section 3 of the Terror isl and
Dismptive Actil'ities (Prevention) Act, 1987.
Terrorism '-Meaning-Discussed. and explained.
According to the prosecution, officer-in-charge of the Police Station
G received information about assemblage of extremists in the house of accused
No. 5 with their plan to attack their adversaries and kill them. Offic1:r-in-
charge formed a raiding party with other police officials. On reaching the
house they saw 20-25 persons. Accused, A-I directed others to bring rifles
and carbines to kill the police party. As a result firing took place between the
parties. Officer-in-charge died on the spot and others in the police party
H 692
I'
MADAN SINGH"· STATE OF BIHAR 693
I
sustained injuries and also three of the extremist died. When accused persons A
started fleeing some of them were apprehended. Search was conducted at the
house of accused 5 and arms, ammunitions, documents, files, letters regarding
banned organizations were seized. Sessions Judge-cum-Special Judge, TADA
convicted and sentenced appellant-accused for offences punishable under
sections 302 and 307 read with section 149 and section 352 and 379 IPC,
section 27 of Arms Act and section 3(2)(i) of Terrorist and Disruptive Activities B
(Prevention) Act, 1987. Hence the present appeal.

Appellant-accused contended that there is no evidence to show that the
accused persons were terrorists or extremists or that the activities alleged are
encompassed by Section 3(1) of TADA Act; that it has not been shown that C
the assembly had any common object to commit any crime or any member
of the assembly had knowledge that crime was likely to be committed as such
Section 149 lPC has no application; that the extremists killed may have been
responsible for the killing of the deceased and for the injuries on the police
constables; that no arms were recovered when the persons were apprehended;
that there is no evidence to show as to who had fired the gun or had asked to D
start firing; that even if there was any assembly it cannot be said that the
same was unlawful; that the definite case of the accused was that there was a
dispute regarding cutting of singada; that as they were apprehending danger
from the higher caste people, some of them might have been armed to protect
themselves; that the trial Court acquitted the accused in whose house the E
alleged occurrence took place; and that the place of occurrence has not been
established by cogent evidence.

Respondent-State contended that the materials seized clearly show that
there was planned preparation and intention to cause terrorist activities; that
, ~. the factual scenario shows the existence of common object and that the accused p
persons were well prepared to commit violent acts; that if the assembly was
for protection from an attack by higher caste people, the arrival of the police
would have been welcomed and the normal conduct could have been to inform
the police personnel on their arrival about their so called fears and to seek
their assistance or protection and not to start firing at them; that the plea
that place of occurrence was near the singada ·pond is incorrect since dead G
bodies of the terrorists were recovered from the house itself; and that the acts
•-.. referred to in Section 3 (1) of TADA Act are comprehensive in nature and as
such the acts committed are clearly covered by the said provision.

Dismissing the appeals, the Court
H
"'1

694 SUPREME COURT REPORTS [2004 J 3 S.C.R.

A HELD: I. In the instant case, the unlawful assembly's common object
was to resist the enforcement of law, and to commit criminal offences and to
overawe the authorities/public servants by use and show of criminal force
which is established by the evidence on record. The criminal acts committed
in furtherance of the common object were not only part of the common object
B of the unlawful assembly but also such which the members of the assembly
knew reasonably well are such as are likely to be committed and thus, Section
149 l.P.C. has been rightly applied. The defence plea regarding alleged
apprehended attack by higher caste people cannot be accepted since such
person would rather welcome the arrival of the police and bring to notice of
the officials about the apprehended danger and not to start firing at the police
C officials knowing them to be police, with defiance adopting a violent posture.
If really the accused persons had gathered for reaping singada as claimed,
there was no reason for giving a call to start shooting at the police and then
actual firing. Further, the materials seized show that the object of the assembly
was preparation for commission of crime and the nature of the assembly was
unlawful. Furthermore, one of the printed materials i.e. literatures seized
D clearly indicates their involvement in nature and type of activities which were
envisaged in and covered by section 3(1) of the TADA Act. Also the plea that
place of occurrence was near the pond where singadas were grown cannot
be accepted as the dead bodies of the 3 persons who fired at the police officials
were found in the house and the dead body of the police official was also found
E nearby. Further it is not correct that none of the persons who were arrested
were carrying arms since some of the prosecution witnesses have stated that
they were also carrying arms and this evidence has not been successfully
rebutted. 17.04-D-H; 705-A-BJ
2.1. Mere presence in an unlawful assembly cannot render a person
F liable unless there was a common object and he shared the same or was
actuated by that common object as one set out in Section 141 IPC. Where
common object of an unlawful assembly is not proved, the accused persons
cannot be convicted with the help of Section 149. It cannot be laid down as a
general proposition of law that unless the commission of an overt act is proved
against a person alleged to be a member of unlawful assembly, it cannot be
G said that he is a member of an assembly. The only thing required is that he
should have understood that the assembly was unlawful and was likely to
commit any of the acts falling within the purview of Section 141.
(701-F-H; 702-AJ
2.2. The word 'object' means the purpose or design for which assembly
H is set out and, to make it 'common', it must be shared by those who compose
\.
MADAN SINGH v. STATE OF BIHAR 695

the assembly. They should all be aware of it and concur in it. A common object A
may be formed by express agreement after mutual consultation, but that is
not always necessary. It may be formed at any stage by all or a few members
and the others may just join and adopt it. Once formed, it need not continue
to be the same. It may be modified or altered or abandoned at any stage.
1702-A-CI B
2.3. The expression "in prosecution of common object" as appearing
in Section 149 have to be strictly construed as equivalent to "in order to attain
the common object." It must be immediately connected with the common
object by virtue of the nature of the object. There must be community of object
and the object may exist only up to a certain point beyond which they may C
differ Jn their objects and the knowledge possessed. It may vary not only
according to the formation at his command, but also according to the extent
to which he shares the community of object, and as such the effect of Section
149 IPC may also vary on different members of the same assembly.
1702-C-E]
D
2.4 "Common Object" is different from a 'common intention' as it does
not require a prior coucert and a common meeting of minds before the attack.
It is enough if each has the same object in view and their number is five or
more and that they act as an assembly to achieve that object. An object is
entertained in the human mind, and it being merely a mental attitude, no
direct evidence can be available. It can be ascertained from the acts and E
language and utterances of the members composing it and from a
consideration of all the surrounding circumstances and the result therefrom.
Though no hard and fast rule can be laid down as to the circumstances from
which the common object can be culled out, the nature of the assembly, the
arms carried by the members, and the behaviour of the members at or near F
the scene of the incident is to be kept in view. 1702-F-H; 703-E]

2.5. It is not necessary under law that in all cases of unlawful assembly,
with an unlawful common object, the same must be translated into action or
be successful. Under the Explanation to Section 141, an assembly which was
not unlawful when it was assembled, may subsequently become unlawful. It G
is not necessary that the intention or the purpose, which is necessary to render
an assembly an unlawful one comes into existence at the outset. The time of
forming an unlawful intent is not material. 1702-H; 703-A]

2.6. Section 149 IPC consists of two parts. The first part of the section
means that the offence to be committed in prosecution of the common object H
696 SUPREME COURT REPORTS (2004] 3 S.C.R.

A must be one which is committed with a view of accomplish t·he common object.
The offence must be connected immediately with the common object of the
unlawful assembly of which the accused was a member. Even if the offence
committed is not in direct prosecution of the common object of the assembly,
it may yet fall under section 141. If it can be held that the offence was such
B as the members knew was likely to be committed and this is what is required
in the second part of the section. If the object desired by all the members is
the same, the knowledge that it is the object which is being pursued is shared
by all the members and they are in general agreement as to how it is to be
achieved and that is now the common object of the assembly. The word
"knew" used in the second branch of the section implies something more than
C a possibility and it cannot be made to bear the sense of "might have been
known". Positive knowledge is nece~sary. When an offence is committed in
prosecution of the common object, it would generally be an offence which
the members of the unlawful assembly knew was likely to be committed in
prosecution of the common object. That, however, does not make the converse
proposition true. There may be cases which would come within the second
D part but not within the first part. The distinction between the two parts of
Section 149 cannot be ignored or obliterated. In every case it would be an ,l..

issue to be determined. 1703-C-GI

Chikkaranga Gowda and Ors. v. State of Mysore, AIR (1956) SC 731,
relied on.
E
Sukhbir Singh v. State of Haryana, 120021 3 SCC 327, referred to.

3. 'Terrorism' though has not been separately defined under Terrorist
and Disruptive Activities (Prevention) Act, 1987 there is sufficient indication
in Section 3 itself to identify what is by an all inclusive and comprehensiv1~
F phraseology adopted in engrafting the said provision, which serves the doubk
purpose as a definition and punishing provision nor is it possible to give a
precise definition of 'terrorism' or lay down what constitutes 'terrorism'. It
may be possible to describe it as use of violence when its most important result
is not merely the physical and mental damage of the victim but the prolonged
psychological effect it produces or has the potential of producing on the society
G as a whole. There may be death, injury, or destruction of property or even
deprivation of individual liberty in the process but the extent and reach of
the intended terrorist activity travels beyond the effect of an ordinary crime
capable of being punished under the ordinary penal law of the land and its
main objective is to overawe the Government or disturb the harmony of the
H society or 'terrorise' people and the society and not only those directly
698 SUPREME COURT REPORTS [2004] 3 S.C.R.
A Prosecution version as unfolded during trial is as follows:

According to the first information report (Ext.4) lodged on 27.11.1988
Sri Rasid Imam (hereinafter referred to as 'deceased') the officer-in-charge
of Arwal Police Station on receiving information about assemblage of
extremists at village Bhadasi in the house of acquitted accused Vakil Ram,
B with police revolver and other ammunitions looted from the police giving
rise to Arwal P.S. Case No. 174/88 and their plan to attack their adversaries
to kill them, formed a raiding party with the other police officials including
Sub Inspector Mohan Singh, the informant (PW-12), Sub Inspector Gajadhar
Chaubey (PW-22), Assistant Sub Inspector S.N. Pandey (PW-I I), Constable
Ram Bi nay Singh (PW-9), Constable Amul Kumar Singh (PW-I 0), Constable
C Md. Najim (PW-8), Constable Babu Maino (PW-5) and others. He also
requisitioned additional force from Kishan Bhavan, Baidrabad. After entering
the information in the station diary he proceeded to village Bhadasi. On the
way he met another police official lrshad Ahmed who was going to see the
DSP. He was asked by the deceased to inform the DSP in regard thereto. On
D reaching Jahanabad, more additional force consisting of Hridyanand Puri
(PW-17), Babu Lal Manjhi (PW-18) and others reported to him. At about
11.30 a.m. on reaching village Bhadasi, the police party proceeded towards +- •
the house of acquitted accused Vakil Ram along with Sant Prakash (PW-3)
and Jitendra Prasad (PW-4) by observing the required procedures. On reaching
the house of Vakil Ram, the deceased posted some police personnel with Sub
E Inspector Gajadhar Choudhary at the gate of the house, and sent another
section of force with S.N. Pandey towards eastern northern direction. The
deceased along with others on entering the house saw 20-25 persons there.
On seeing the police party accused Mukai ya Shah Chand of Bhadasi (A- I)
directed others to bring rifles and carbines and to kill the police party,
F whereupon the accused persons started firing by going inside a room. As a
result of the firing, constable Amul Kumar Singh (PW-I 0) was hit on his left
side of the body. In spite of the injury, said Amul Kumar Singh (PW-10)
fired one round, but fell on the ground. One of the extremists snatched his
rifle who was shot at by firing made by Babu Mahto (PW-5). Again while
one of the extremists attempted to flee away with the rifle, the deceased
G snatched it after chasing him. But in between the extremist had made firings
as a result of which the deceased died at the spot.
)I ,
In the meantime, the extremists started firing upon the police pa11y,
who by taking position behind a door fired at the extremists. As a result of
H firing by the extremists Hridyanand Puri received injury in his hand. Taking
MADAN SINGHv. STATE OFBIHAR [PASAYAT.J.] 699
.....
stock of the situation, the informant apprehending threat on the life of police A
party as well as snatching of the ammunition, ordered for firing. On the firing
made by Hridyanand Puri, one of the extremists was killed followed by three
rounds of firing by Babu Lal Manjhi (PW-18) and five rounds of firing by
Md. Nazim (PW-8). As a result of the firing, one more extremist was killed.
Even after firing by the police the accused persons continued firing on the
police party which compelled the police party for further firing, which caused
B
injury in the leg of one extremist, who started fleeing away. While the accused
>'"°'"'\ persons started fleeing, some of them Lakshman Sao (A-5), Lakhi Choudhary,
Shyama Choudhary (A-7), Madan Singh (A-10), Ajit Kumar (A-6), Ram
Janam Ram (A-3), Nanhe Rajwar (A-4), Manghu Choudhary (A-15), Mahendra
Choudhary, Shorai Choudhary (A-12), Baleshwar Choudhary (A-14), Arvind c
Chaudhary (A-13) were apprehended by the police party. They also
apprehended Shanti Devi (A-8) along with two children Lila and Chandan
from a room situated south of the courtyard of the house. In the meantime
DSP Arwal arrived along with Sub-Inspector lrshad Imam and additional
reinforcement. It came to light that the extremists were fleeing away by
making firing and he along with other police personnel chased the extremists D
'_. for seizing their arms, but they managed to flee away.

On search of the house of Vakil Ram in presence of witnesses, arms,
ammunitions, several documents, files, letters regarding banned organisations,
rifles, cartridges and carbine were seized. A copy of the seizure list was E
handed over to Ram Janam Ram son of Vakil Ram. The informant claimed
to have identified Tribhuwan Sharma (A-18), Dr. Jagdish (A-16), Arun Kumar
Bharti (A-17), Churaman Bhagat (A-2) besides Shah Chand Mukaiya (A· I)
while they were fleeing.
' 'f.
After investigation charge sheet was placed and cognizance was taken F
for offences relatable to Sections 302, 307, 353, 379, 41 I, 324, 326, 414,
124A read with Section 34 IPC and Sections 25, 27 and 35 of the Arms Act
and Sections 3 and 4 of the TADA Act. Charges were framed for offences
punishable under Sections 302 and 307 read with Section 149 IPC and Sections
353, 379, 124A !PC and Sections 3 and 4 of the Explosive Substances Act,
1908 (in short 'the Explosive Act') and Section 3(5) of the TADA Act.
G
Acquitted-accused Vakil Ram was separately charged for offence punishable
t ). under Sections 3 (4) of the TADA and 25(1B) and 27 of the Arms Act. In
order to substantiate its accusations, 25 witnesses were examined by the
prosecution. The accused persons pleaded innocence and examined 5
witnesses. On consideration of the m1terials on record the Trial Court recorded H
700 SUPREME COURT REPORTS 12004] 3 S.C.R.
"1'"
A conviction and imposed sentences as aforesaid.
In support of the appeal, Mr. Shanti Bhushan, learned senior counsel
for the appellants in Criminal Appeal No.1297 of 2003 submitted that the
judgment of the Trial Court cannot be maintained on several grounds. Firstly,
there is no evidence to show that the accused persons were terrorists or
B extremists or that the activities or actions alleged are encompassed by Section
3 (I) of the TADA Act to be described as terrorist acts. Further, the prosecution
evidence is to the effect that on getting secret information the police officials
went to the spot of occurrence and then some one amongst them is supposed
to have cried out that police officials have come and got weapons. Thereafter,
C the firing is supposed to have started from both sides. 3 persons have been
killed who were claimed to be terrorists by the prosecution. It may be that
they are responsible for the killing of the deceased and for the injuries on the
police constables. The witnesses have admitted that they did not know the
accused persons earlier and after firing started when some persons were
fleeing away they were caught. There is no reason to hold that they were
D guilty of any offence when admittedly large number of villagers had assembled
on hearing the gun fire. It has also come on record that when the persons
were apprehended no anus were recovered, from any of the persons who
were apprehended while allegedly fleeing, though one witness has stated that
some arms were recovered from the persons running away. Even if there was
E any assembly it cannot be said that the same was unlawful to bring in
application of Section 149 IPC. There is no evidence to show as to who had
fired the gun or had asked to start firing. The definite case of the accused
persons, right from the beginning, was that there was dispute regarding cutting
of singadas. Investigating Officer accepted. that he had not made any
investigation to find out as to whether persons had assembled for cutting
F singada. Documents were produced to show that some of the accused persons
had raised singada crops. The accused persons have taken a definite stand
that they were apprehending danger from the higher caste people and, therefore,
some of them may have been armed to protect themselves in case of attack
by the higher caste people. The Trial Court has acquitted Vakil Ram in
G whose house the alleged occurrence took place. It has not been shown that
the assembly had any common object to commit any crime or any member
of the assembly had knowledge that crime was likely to be committed. Tho~e
)I "
who were supposedly present may not have information about presence of
arms which were seized. Therefore, Section 149 IPC has no application. The
place of occurrence has not been established by cogent evidence. The defence
H stand that occurrence took place near Singara pond is more probable in view
\.. .
'

MADAN SINGH r. STATE OF BIHAR [PASAYA L J.] 70 I

of the evidence adduced. In this background it was submitted that conviction A
as done is uncalled fJr. Learned counsel for appellants in CrLA. No.1285/
2003 advanced similar arguments.

In response, Mr. H.L. Agrawal, learned senior counsel for the respondent-
State submitted that the assembly was in an isolated place. The materials
seized clearly show that there was planned preparation and !nte11tion to cause B
terrorist activities. Sophisticated arms were used and seized. Common object
can develop at the spot. It is the existence of the common object at the time
of actual occurrence which is :o be seen. The factual scenario clearly goes
to show the existence of common object. If the assembly was for protection
from an attack by higher caste people as claimed, the arrival of the police C
would have been welcomed because that would have provided _protection.
When the call was given to start firing, after collecting arms several persons
started firing. All the arms were inside the house and it is not the stand of
the accused persons that anybody went outside to collect them. Therefore, the
ac_cused persons were well prepared to commit violent acts. If really there
was any apprehension of attack by the higher caste people, the normal conduct D
I 4
would have been to inform the police personnel on their arrival about their
so called fears and sought their assistance or protection and not to start firing
at them. The acts referred to in Section 3 (1) of TADA Act are comprehensive
in nature and, therefore, the acts committed are clearly covered by said
provision. The plea that place of occurrence was different and was near the E
singada pond is clearly disproved by the fact that dead bodies of the 3
terrorists were recovered from the house itself.

Major plea which was emphasized relates to the question whether Section
149, !PC has any application for fastening the constructive liability on _the
basis of unlawful acts committed pursuant to the common object by any F
member or the acts which the members of the unlawful assembly knew to be
likely to be committed which is the ·sine qua non for its operation. The
emphasis is on the common· object and not on common intention. Mere
presence in an unlawful assembly cannot render a person liable unless there
was a common object and he shared the same or was actuated by that common
object and that object is one of those set out in Section 141. Where common G
object of an unlawful assembly is not proved, the accused persons cannot be
• ')I, convicted with the help of Section 149. The crucial question to determine is
whether the assembly consisted of five or more persons and whether the said
persons ente11ained one or more of the common objects, as specified in
Section I4 I. It cannot be laid down as a general proposition of law that H
J

702 SUPREME COURT REPORTS [2004] 3 S.C.R.

A unless the commission of an overt act is proved against a person, who is
alleged to be a member of unlawful assembly, it cannot be said that he is a
member of an assembly. The only thing required is that he should have
understood that the assembly was unlawful and was likely to commit any of
the acts which fall within the purview of Section 141. The word 'object'
B means the purpose or design and, in order to make it 'common', it must be
shared by all. In other words, the object should be common to the persons,
who compose the assembly, that is to say, they should all be aware of it and
concur in it. A common object may be formed by express agreement after )... ,
mutual consultation, but that is by no means always necessary. It may be
formed at any stage l>y all or a few members of the assembly and the other
C members may just join and adopt it. Once formed, it need not continue to be
the same. It may be modified or altered or abandoned at any stage. The
expression 'in prosecution of common object' as appearing in Section 149
have to be strictly construed as equivalent to 'in order to attain the common
object'. It must be immediately connected with the common object by virtue
of the nature of the object. There must be community of object and the object
D may exist only up to a particular stage, and not thereafter. Members of an
unlawful assembly may have community of object up to certain point beyond
which they may differ in their object5 and the knowledge, possessed by each
member of what is likely to be committed in prosecution of their common
object may vary not only according to the information at his command, but
E also according to the extent to which he shares the community of object, and
as a consequence of this the effect of Section 149, !PC may also vary on
different members of the same assembly.

'Common object' is different from a 'common intentio!l' as it does not
require a prior concert and a common meeting of minds before the attack. It
F is enough if each has the same object in view and their number is five or
more and that they act as an assembly to achieve that object. The 'common
object' of an assembly is to be ascertained from the acts and language and
utterances of the members composing it the nature of arms carried , and from
a consideration of all the surrounding circumstances. It may be gathered also
G from the course of conduct adopted by and behaviour of the members of the
assembly at or before the actual conflict. What the common object of the
unlawful assembly is at a particular stage of the incident is essentially a
question of fact to be d~termined, keeping in view the nature of the assembly, )! '

the arms carried by the members, and the behaviour of the members at or
near the scene of the incident. It is not necessary under law that in all cases
H of unlawful assembly, with an unlawful common object, the same must be
MADAN SINGH v. STATE OF Bl HAR [PASAY AT . .I.] 703
translated into action or be successful. Under the Explanation to Section 14 L A
an assembly which was not unlawful when it was assembled, may subsequently
become unlawful. It is not necessary that the intention or the purpose, which
is necessary to render an assembly an unlawful one comes into existence at
the outset. The time of forming an unlawful intent is not material. An assembly
which, at its commencement or even for some time thereafter, is lawfu I, may B
subsequently become unlawful. In other words it can develop during the
course of incident at the spot eo instante.

Section 149, IPC consists of two parts. The first part of the section
means that the offence to be committed in prosecution of the common object
must be one which is committed with a view to accompiish the common C
object. In order that the offence may fall within the first part, the offence
must be connected immediately with the common object of the unlawful
assembly of which the accused was member. Even if the offence committed
is not in direct prosecution of the common object of the assembly, it may yet
fall under Section 141, if it can be held that the offence was such as the
members knew was likely to be committed and this is what is required in the D
second part of the section. The purpose for which the members of the assembly
\ .... set out or desired to achieve is the object. If the object desired by all the
members is the same, the knowledge that is the object which is being pursued
is shared by all the members and they are in general agreement as to how it
is to be achieved and that is now the common object of the assembly. An E
object is entertained in the human mind, and it being merely a mental attitude,
no direct evidence can be available and, like intention, has generally to be
gathered from the act which the person commits and the result therefrom.
Though no hard and fast rule can be laid down as to the circumstances from
which the comnion object can be called out, it may reasonably be collected
from the nature of the assembly, arms it carries and behaviour at or before F
or after the scene of incident. The word 'knew' used in the second branch of
the section implies something more than a possibility and it cannot be made
to bear the sense of 'might have been known'. Positive knowledge is necessary.
When an offence is committed in prosecution of the common object, it would
generally be an offence which the members of the unlawful assembly knew G
was likely to be committed in prosecution of the common object. That,
however, does not make the converse proposition true; there may be cases
which would come within the second pait but not within the first part. The
distinction between the iwo parts of Section 149 cannot be ignored or
obliterated. ln every case it would be an issue to be determined, whether the
offence committed falls within the first part or it was an offence such as the H
704 SUPREME COURT REPORTS [2004] 3 S.C.R.

A members of the assembly knew to be likely to be committed in prosecution
of the common object and falls within the second part. However, there may
be cases which would fall within first part being offences committed in
prosecution of the common object, while at the same time, though not always
falling within the second part, as offences which the members of the unlawful
B assembly knew to be likely to bt! committed by a person engaged in the
prosecution of the common object ·and acting with the purpose of executing
it. (See Chikkarange Gowda and Ors. v. State of Mysore, AIR (1956) SC
731.)

As noted by this Court in Sukhbir Singh v. State of Haryana, (2002)
C 3. SCC 327 common object in terms of Section 149 can develop at the spot.
Existence of the object has to be considered at the time of actual occurrence
and not necessarily from anterior point of time.

When the factual scenario is considered in the background of the legal
positipn enumerated above, the inevitable conclusion is that Section 149 has
D been rightly applied. The fact that the unlawful assembly's common object
was to resist the enforcement of law, and to commit criminal offences and
to overawe the authorities/public servants by use and show of criminal force ; '
stood firmly established on the evidence on record. Consequently, the criminal
acts committed in furtherance of the common object, which acts were not
only part of the common object of the unlawful assembly but also such
E which the members of the assembly knew reasonably well are such as are
likely to be committed squarely attract Section 149 1.P.C. Certain salient
factual aspects clearly establish prosecution version. Firstly, defence plea
regarding alleged apprehended attack by higher caste people has been found
to be of no substance. If really the accused persons had gathered for reaping
F singada as claimed, there was no reason for the call to be given to start
shooting at the police and then actual firing. A person who apprehends attack
from some other person would rather welcome the arrival of the police and
bring to notice of the officials about the apprehended danger and not to start
firing at the police officials knowing them to be police, with defiance adopting
a violent posture . This itself is sufficient to discard the defence version
G about nature and object of assembly. Further, the materials seized show that
the object of the assembly was preparation for commission of crime. The
presence of huge quantity of arms and that too sophisticated arms unerringly
shows the nature of the assembly was unlawful. One of the printed materials
i.e. literatures seized clearly indicates their involvement in nature and type of
H activities which were envisaged in and covered by section 3 (I) of the TADA
MADAN SINGH v. STA TE OF 131HAR IPASA YAT. I] 705.
Act. The plea that place of occurrence was different and was near pond A
where singadas were grown is also without substance. The dead bodies of the
3 persons who fired at the police officials were found in the house said to
belong to the acquitted accused Vakil Ram and the dead body of the deceased
was also nearby. The evidence of the injured police officials is also relevant,
and there is no reason as to why they would falsely implicate the accused
persons. It is not correct as submitted by the learned counsel for the appellants B
that none of the persons who were arrested were carrying arms. In fact, some
of the prosecution witnesses have stated that they were also carrying arms,
and this evidence has not been successfully rebutted.

A 'terrorist' activity does not merely arise by causing disturbance· of C
law and order or of public order. The fallout of the intended activity is to be
one that it travels beyond the capacity of the ordinary law enforcement agencies
to tackle it under the ordinary penal law. It is in essence a deliberat~ and
systematic use of coercive intimidation.

It is a common feature that hardened criminals today take advantage D
of the situation and by wearing the cloak of terrorism, aim to achieve
acceptability and respectability in the society; because in different parts of
the country affected by militancy, a terrorist is projected as a hero by a group
and often unfortunately even by many misguided youths. As noted at the
outset, it is not possible to precisely define "terrorism". Finding a definition
of "terrorism" has haunted countries for decades. A first attempt to arrive at E
an internationally acceptable definition was made under the League of Nations,
but the one which the convention drafted in 1937 never came into existence.
The UN member States still have no agreed-upon definition apparently on
account of what at times reveal to be state sponsored terrorism, both at
national and international levels. Terminology consensus would, however, be p
necessary for a single comprehensive convention on terrorism, which some
countries favour in place of the present 12 piecemeal conventions and
protocols. The lack of agreement on a definition of terrorism has been a
major obstacle to meaningful international countermeasures. Cynics have often
commended at national and international levels that one State's "terrorist" is
another State's "freedom fighter" and that too with the blessings of those in G
power. Crime became an highly politicised affair and greed compounded by
corruption and violence enabled unscrupulousness and hypocrisy reigns
supreme, supported by duplicity and deceitful behaviour in public life to
amass and usurp public power to perpetuate personal aggrandizement,
pretending to be for the common good. If terrorism is defined strictly in H
706 SUPREME COURT REPORTS [2004 J 3 S.C.R.

A terms of attacks on non-military targets, a number of attacks on military
installations and soldiers' residences could not be included in the statistics.
In order to cut through the Gordian definitional knot, terrorism expert A.
Schmid suggested in 1992 in a report for the then UN Crime Branch that it
might be a good idea to take the existing .consensus on what constitutes a
B "war crime" as a point of departure. If the core of war crimes - deliberate
attacks on civilians, hostage-taking and the killing of prisoners - is extended
to peacetime, we could simply define acts of terrorism veritably as "peacetime
equivalents of war crimes".

League of Nations Convention (1937)
c "All criminal acts directed against a State along with intended or
calculated to create a state of terror in the minds of particular persons or a
group of persons or the general public."

(GA Res. 51/210 - Measures to eliminate international terrorism)
D "1. Strongly condemns all acts, methods and practices of terrorism as
criminal and unjustifiable, wherever and by whomsoever committed; ,_ '
2. Reiterates that criminal acts intended or calculated to provoke a
state of terror in the general public, a group of persons or particular persons
E for political purposes are in any circumstances unjustifiable, w1atever the
considerations of a political, philosophical, ideological, racial, ethnic, religious
or other nature that may be invoked to justify them."

3. Short legal definition proposed by A.P. Schmid to United Nations
Crime Branch ( 1992)
F Act of terrorism = peacetime equivalent of war crime

4. Academic consensus definition "Terrorism is an anxiety-inspiring of
-
repeated violent action, employed by (semi-) clandestine individual, group or
State actors, for idiosyncratic, criminal or political reasons, whereby - in
G contrast to assassination - the direct targets of violence are not the main
targets. The immediate human victims of violence are generally chosen
randomly (targets of opportunity) or selectively (representative or symbolic
targets) from a target population, and serve as message generators. Threat- lf ~
and violence-based communication processes between terrorist (organization),
(imperilled) victims, and main targets are used to manipulate the main target
H [audience(s)], turning it into a target of terror, a target of demands, or a target
MADAN SINGH l'. srATE OF BIHAR [PASA y AT, J.) 707
of attention, depending on whether intimidation, coercion, or propaganda is A
primarily sought." (Schmid, 1988)

Dejinition.1· :

Terrorism by nature is difficult to define. Acts of terrorism conjure up
emotional responses in the victims (those hurt by the violence and those B
affected by the fear) as well as in the practitioners. Even the U.S. Government
cannot agree on one single definition. The old adage "one man's terrorist is
' -\ another man's freedom fighter" is still alive and well. Listed below are several
definitions of terrorism used by the Federal Bureau of Investigation :

"Terrorism is the use of threatened use of force designed to bring about C
political change." Brian Jenkins

"Terrorism constitutes the illegitimate use of force to achieve a political
objective when innocent people are targeted." Walter Laqueur

"Terrorism is the premeditated, deliberate, systematic murder, mayhem, D
and threatening of the innocent to create fear and intimidation in order to
gain a political or tactical advantage, usually to influence an audience." James
M. Poland

"Terrorism is the unlawful use or threat-0f violence against persons or
property to further political or social objectives. It is usually intended to E
intimidate or coerce a Government, individuals or groups, or to modify their
behavior or politics." Vice-President's Task Force, 1986

"Terrorism is the unlawful use of force or violence against persons or
property to intimidate or coerce a Government, the civilian population, or F
any segment thereof, in furtherance of political or social objectives." FBI
definition

Terrorism is one of the manifestations of increased lawlessness and
cult of violence. Violence and crime constitute a threat to an established
order and are a revolt against a civilised and orderly society. "Terrorism" G
though has not been separately defined under TADA, there is sufficient
indication in Section 3 itself to identify what it is by an all inclusive and
' 'i comprehensive phraseology adopted in engrafting the _said provision, which
serves the double purpose as a definition and punishing provision nor is it
possible to give a precise definition of "terrorism" or lay down what constitutes
"terrorism". It may be possible to describe it as use of violence when its most H
I

~

708 SUPREME COURT REPORTS [2004 J 3 S.C.R.

A important result is not merely the physical and mental damage of the victim
but the prolonged psychological effect it produces or has the potential of
producing on the society as a whole. There may be death, injury, or destruction
of property or even deprivation of individual liberty in the process but the
extent and reach of the intended terrorist activity travels beyond the effect of
B an ordinary crime capable of being punished under the ordinary penal law of
the land and its main objective is to overawe the Government or disturb the
harmony of the society or "terrorise" people and the society and not only
those directly assaulted, with a view to disturb the even tempo, peace and ..,... <

tranquility of the society and create a sense of fear and insecurity.

C In the aforesaid background, the inevitable conclusion is that the appeals
are sans merit and deserve dismissal, which we direct.

N.J. Appeals dismissed.