Section 190 BNSS | Mere Presence In Unlawful Assembly With Active Intent Renders Member Vicariously Liable For Homicidal Act: Punjab & Haryana High Court

"Under Section 190 of BNSS, the liability of the other members, for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object or not." Punjab and Haryana High Court, in a significant ruling dated September 21, 2026, held that an accused participating in an unlawful assembly can be held vicariously liable for the acts of co-accused if their involvement demonstrates a shared common object, even if they are not the primary assailant.

Dismissing an appeal for regular bail, a bench led by Justice Manisha Batra observed that such knowledge of the common object can be "reasonably collected from the nature of the assembly, the weapon used, the behaviour of the participants at or before the scene of action."

The appellant, Sanjeev Kumar alias Sunny Boxer, sought regular bail in connection with an FIR registered under the Bharatiya Nyaya Sanhita (BNS) and the SC/ST Act, following a fatal assault on the complainant's son. The prosecution alleged that the victim was attacked by a group arriving in multiple vehicles, resulting in his death, with specific allegations that the appellant severed the victim’s fingers and thumb using a sword. The trial court had previously denied the appellant's bail application, leading to the current appeal under Section 14-A(2) of the SC/ST Act.

The primary question before the court was whether the appellant, despite claims of not being the "principal assailant," could be denied bail given his alleged membership in an unlawful assembly under Section 190 of the BNS. The court was also tasked with determining whether the length of incarceration and the absence of specific weapon-use attributions were sufficient grounds to override the gravity of the offense of murder in a bail proceeding.

The court emphasized that the determination of vicarious liability under Section 190 of the BNS (which corresponds to Section 149 of the IPC) is not merely restricted to physical presence at the crime scene. The bench noted that while mere presence is a factor, the crucial element is an "active mind" to achieve the common object of the unlawful assembly.

Determining Vicarious Liability

The Court highlighted that the prosecution had prima facie established the appellant's presence and active participation, noting that the weapon of the offense—a sword—was recovered at his specific instance. The bench reiterated that when members of an unlawful assembly act in unison, they are aware of the likely consequences of their collective actions.

Gravity of Offense and Discretionary Relief

Addressing the appellant's argument regarding the duration of his custody, the Court clarified that while incarceration period is a relevant factor, it cannot eclipse the seriousness of a charge involving a heinous crime punishable by life imprisonment or capital punishment. The court underscored that bail is a discretionary relief that must be exercised with caution, particularly where there is a risk of tampering with evidence.

Court Explains Bail Principles

The bench observed, "It is also well-settled proposition of law that grant of bail is a discretionary relief to be granted or denied based on specific facts and circumstance of each case and there cannot be any exhaustive parameters set out for considering the application for grant of bail."

Factors Governing Discretion

The Court reiterated that the nature of accusations, the severity of potential punishment, and the nature of the supporting evidence are the primary benchmarks for judicial discretion. It noted that in the present case, the appellant’s antecedents—including involvement in five prior NDPS Act cases—further militated against the grant of bail.

The High Court found no illegality in the trial court’s order and dismissed the appeal, holding that the gravity of the accusations and the active role of the appellant in the homicidal attack justified continued detention. The court clarified that these observations are strictly confined to the bail adjudication and shall not prejudice the trial on merits.

Date of Decision: 21 September 2026