1

Criminology

Fundamentals of Crime, Criminal Law and Criminal

Justice

Joint Liability

Quadrant I- Description of the Module

DEVELOPMENT TEAM

Principal Investigator Prof. (Dr.) G.S. Bajpai Registrar, National Law

University Delhi

Paper Coordinator Dr. Debdatta Das Asst. Prof. Department of Law,

The University of Burdwan .

Content Writer/Author Mr. Ramakrishna Das.P.R Asst. Prof. National Law

University Odisha

Content Reviewer Prof. N.K. Chakrabarti Director, KIIT School of Law,

KIIT University,

Bhubaneswar

Description of Module

Subject Name Criminology

Paper Name Fundamentals of Crime, Criminal Law and

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JOINT LIABILITY

Introduction

The universal law is that every man is responsible criminally for the wrong committed

himself malafidely or in other words, no man will be held responsible for the independent act

of wrong committed by another1. It is thus accorded that the primary responsibility is of the

person who is actually commits the crime and he will be guilty for the same and shall be

punished in accordance with law.

However, the implication comes only when several persons are involved in the commission

of an offence in different capacities. Let‟s say, one is the actual offender and the rest are

facilitator. In such cases, a distinction should be drawn the acts of each of such individuals

according to their mode and degree of participation or involvement in the commission of the

offence for ascertaining guilt and awarding punishment. Such persons are broadly classified

into Principle and abettors2. When two or more persons are involved, either jointly or in

group and its not possible to apportion criminal guilt of each of the participants, all the

participants are held jointly liable for the offence committed by any one or all the members of

the group. This is based on the principle that the presence of accomplice gives 1 Bharendra Kumar Ghose V. King Emperor, AIR 1924 Cal 545; (1925) 27 BOMLR 148

2 In India, the offenders are classified into two, the actual offender and the abettor

Criminal Justice

Module Name/Title Joint Liability

Module Id 22

Pre-requisites A general understanding of the primary

principles of criminal law is required for a

proper understanding of this module.

Objectives To understand the concept of joint

liability in general

To understand the concept of joint

liability in criminal law particularly

To understand the difference between

common intention and common object

To understand the application of

section 34 & 149

Key Words Common intention- common knowledge-

joint liability

3

encouragement, protection and support to the person actually engaged in the commission of

the unlawful act. The doctrine of group liability is justified on the common sense principle

that if two or more persons do an act conjointly, it is just the same as if each of them has done

it individually3.

Learning outcome

a. To understand the concept of joint liability in general

b. To understand the concept of joint liability in criminal law particularly

c. To understand the difference between common intention and common object

d. To understand the application of section 34 & 149

Vicarious liability under Torts

The vicarious liability under the law of torts impose responsibility upon one person for the

tort committed by the another with whom the person has a special relationship, to exercise

such care as a reasonably prudent man would use under similar circumstances. The most

common form of vicarious liability is when the employers are held liable for the tort

committed by the employee. Some of the instances of such liability are liability of a principle

for the tort committed by the agent; liability of partners of each other‟s tort; liability of a

father for the tort of his child etc.

Joint Liability under Civil Law

Historically, liability for such an imposition was because of slavery system that existed

before where slaves were considered to be the property of the masters. Hence, if any tortuous

act committed by the slave whether with or without authority it is presumed the same was

committed as per the instructions of the master. By the end of 17th

century, the concept of

vicarious liability was found inadequate due to rise in commercial transaction. New

development took place when Sir John Holt in the case of Tuberville v. Stamp4held that” the

master would be liable for his servants tort if he had given his implied command. Hence we

can say the modern theory of vicarious liability is propounded by Sir John Holt. However, the

modern concept is not on the basis of slavery concept but on the basis of the following

principles such as:

3 Infra 29

4 (1697) 1 Ld Raym 267

4

i. Respondent superior: The literal meaning of this maxim is “ Let the principle be

held responsible” or “ let the superior make answer” . It provides a better chance to

the victim to claim appropriate damages because under this principle the

employer/Principal is liable for the injuries caused by an employee/agent who is

working within the scope of his employment relationship. The theory behind

respondent superior is that the principal controls the agent‟s behaviour and must then

assumes some responsibility for the agent‟s actions5

ii. Qui faciet alium facet perse: It means “he who acts through another does the act

himself”6. It simply says the principle is personally liable for the negligent act

committed by the agent during the course of employment. A principal's tort liability is

based not on an agency but on the relationship of master and servant expressed in the

maxim “respondent superior”.

Moreover , the liability attaches to a person for the wrongs committed by others may arise on

other two circumstances too such as liability by ratification and liability by abetment. When a

person commits a wrong while acting on behalf of another but without his authority and that

the other subsequently ratifies that act, he thereby becomes responsible for it. It is on the

basis of the maxim that omnis ratihabitio retrorahituret mandato priori acquipqratur7

means „ratification relates back and thereupon becomes equivalent to a previous request‟. In

actions of torts, those who abet the tortuous acts are as much as liable as the tort-feasors

themselves

The Close connection test

The second element is the “in the course of employment”, perhaps the “most vexed

requirement” and has often resulted in decisions which are inconsistent or irreconcilable,

leading observers to suspect that many decisions were really based on the Court‟s perception

of what justice required8.An early yardstick used is the Salmond test

9of authorised and

5 Sayles v. Piccadilly Cafeterias, 410 S.E.2d 632(1991),

6 Colonial Secur., Inc. v. Merrill Lynch, 461 F. Supp. 1159 (S.D.N.Y. 1978) ; Pennsylvania v International

Union of Operating Engineers , 469 F. Supp. 329, 807 F.2d 330; 55 USLW 2355 7 R,H, Kersley(ed), “ Brooms Legal Maxims”, Pakistan Law House, Karachi (10

thed),1998.

8 Deakin, Johnston & Markesinis,Markesinis & Deakin’s Tort Law OUP, (6

th ed) , 2007

9 J W Salmond , The Law of Torts, Stevens & Haynes, London (1907). Salmond's course of employment test.

This precluded recovery for torts committed while an employee was not involved in the furtherance of his

employer's business. Previously it was stated that an employer will be held liable for either a wrongful act they

5

unauthorised act – if the act was authorised but the mode was unauthorised, the act was

nevertheless done “in the course of employment”. However, the Salmond test, though

generally helpful, had its limitations and various other tests or factors were introduced,

including:

1. The degree of excessiveness of the employees conduct;

2. The employees motive

3. The scope of the employees authority; and

4. Whether the conduct benefited the employer

Even with all these tests, Courts had difficulty in dealing satisfactorily with cases of

intentional torts, such as instances of sexual abuse in welfare homes. In Lister v Hesley

Hall10

, the House of Lords held a boarding house vicariously liable for the sexual assaults

committed by the warden on children in his care on the basis of the close connection between

the employee‟s nature of employment and the tort he committed. In so doing, it overturned

the Court of Appeal decision in Trotman v North Yorkshire11

, which had applied the Salmond

test and held a school not vicariously liable for the sexual assault committed by its deputy

headmaster. In Lister, the House of Lords chose instead to follow the lead of the Canadian

Supreme Court in Bazley v Curry12

.The advantage of the close connection test, as Lord

Millett observed, is that “it would accord with the underlying rationale of the doctrine of

vicarious liability and be applicable without straining the language of the Salmond test to

accommodate cases of intentional wrongdoing”13

.

Joint Criminal liability under Indian and English law

The English legal system makes a clear distinction between Principle and the accessories.

The principle is the person who actually commits the crime and the latter is the person who

have authorised, or a wrongful and unauthorised mode of an act that was authorised. Visit:

http://www.lawgazette.com.sg/2012-01/303.htm 10

(2002)1 AC 215 11

(1990 LGR 584, CA 12

(1999)174 DLR (4) 45. The actual name of the case is a lengthy one - The Children’s Foundation, the

Superintendent of Family and Child Services in the Province of British Columbia and Her Majesty The Queen

in Right of the Province of British Columbia as represented by the Ministry of Social Services and Housing v

Patrick Allan Bazley. 13

Visit: http://www.lawgazette.com.sg/2012-01/303.htm

6

aids the principle for committing the crime14

. They are treated as accomplice and both will be

held responsible for the criminal liability.

The basic justification for constructive liability under the criminal law is twofold: Firstly,

offences committed in groups give encouragement to the accomplice and, secondly, in

offences committed in groups the job of the prosecution becomes difficult to ascertain the

specific role played by each member of the group. Thus , in a case where two or more person

are involved, either jointly or in group, and it is not possible to apportion criminal guilt of

each of the participants, all the participants would be able for the offence committed by

anyone or all the members of the group. This is on the basis of the doctrine constructive

liability/ joint liability/ vicarious liability/ complicity of crimes.

The complicity of crime under Indian Penal Code

The provisions relating to joint liability are contained in sections 34-38, 120A and 120 B,

149, 154-156, 396, 460 of the Indian Penal Code. Section 34-38 deals with joint liability on

the basis of “common intention”. Section 120 A and 120B deals with joint liability of a

member of a conspiracy to commit an offence. Section 149 deals with joint liability of a

members of an unlawful assembly when an offence is committed in persecution of the

common object of the unlawful assembly. Section 154-56 deals with the liability of the

owner of the property where an unlawful assembly was held for conducting riot. Section 396

deals with joint liability of dacoits when a dacoit commits murder for committing dacoity.

Section 460 deals with joint liability of person concerned in lurking house trespass or house

breaking by night when death or grievous hurt is caused by one of them.

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The traditional common law classified the criminals into four categories, Viz, Principal in the first category,

who actually does the crime, The principle in the second category , who was present at the place of occurrence

and also assisted in committing the crime ; An accessory before the fact who was not present at the scene of the

crime but assisted the principle to prepare the commission of the crime and An accessory after the fact, who

helped a party to the crime after its commission by providing comfort, aid and assistance in escaping or avoiding

arrest and prosecution or conviction. However, the modern English law classified into two categories such as

Principal and their accomplices and the accessories. Most of the federal states made such classification.

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Liability on the basis of “Common Intention”

By virtue of section 34 of the Indian Penal Code “when a criminal act is done by several

persons in furtherance of the common intention of all, each of such persons is liable for that

act in the same manner as if it were done by him alone”15

Section 34 is one of the sections contained in chap. II, Penal Code, headed "General

Explanations." It is one of a group of sections which have to be read together, viz., Sections

15

Section 34, IPC - Acts done by several persons in furtherance of common intention. As the section stood

originally, the words "in furtherance of the common intention of all" were not there. By Section 1 of Act XXVII

[27] of 1870, however, in place of the old Section 34 of the Code, a new Section 34 was substituted with the

addition of the words "in furtherance of the common intention of all." This was done in order to make the object

of this section clear.

Complicity of crime/ group

liability/ constructive

liability/vicarious liability/joint

liability

Section 34-38 Section 120A-120B, Section 149, 154-56

396 &460

Section 34- Act done by several

in furtherance of the common

intention

Section 35: when such an act is

criminal by reason of uts being

done with a criminal knowledge

or intention

Section 36 effect caused partly

act or partly by omission

Section 37: Cooperation by

doing one of several acts

constituting an offence

Section 38: persons concerned

in criminal act may be guilty of

different offence.

Section 120A: Criminal

Conspiracy- when two or

more persons agree to do or

cause to be done,- an illegal

act, or an act which is not

illegal by illegal means,

such an agreement is

designated as criminal

conspiracy

Section 120 B: Punishment

for criminal Conspiracy

Section 396: Dacoity with

murder

Section 460: All persons

concerned in lurking house

trespass or house breaking

by night punishable where

death or grievous hurt

caused by one of them

Section 149: Every member

of unlawful assembly guilty of

offence committed in

prosecution of common

object.

Section 154: owner or

occupier of land on which an

unlawful assembly is held.

Section 155: Liability of

person whose benefit riot is

committed.

Section 156: Liability of agent

of owner or occupier for those

benefit riot is committed

8

3216

, 33, 34, 3517

, 3718

and 3819

, in order to appreciate its full significance. As a matter of

fact, Sections 35, 37 and 38 provide the background against which provisions of Section 34

are to be judged20

. The Judicial Committee of the Privy Council has had an occasion to

consider the scope of section 34 in Barendra Kumar v. Emperor21

and Mahoob shah v.

Emperor22

. In the former case it was held that:

"Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if

all are done in furtherance of a common intention, each person is liable for the result of

them all as if he had done them himself. 'That act' and then again 'it' in the latter part of the

section must include the whole of the action covered by the 'criminal act' in the first part of

the section23

." Further the court added that "A criminal act means that unity of criminal

behaviour, which results in something, for which an individual would be punishable, if it

were all done by him alone, i.e., a criminal offence.24

"

In the case of Mahoob the apex court held that “Section 34, Penal Code, lays down the

principle of joint liability in the doing of a criminal act .... the essence of that liability is to be

found in the existence of 'common intention' animating the accused leading to the doing of a

criminal action furtherance of such intention. To invoke the aid of Section 35 successfully it

must be shown that the criminal act complained against was done by one of the accused

persons in the furtherance of the common intention of all. Intention, within the meaning of

the section, implies a prearranged plan, and to convict an accused of an offence applying this

section it should be proved that the criminal act was done in concert pursuant to the

prearranged plan. It is difficult, if not impossible, to procure direct evidence to prove the

intention of an individual; in most cases it is to be inferred from his act or conduct or other

16

Section 32 makes it clear that "acts" includes "illegal omissions." Section 33 explains that the word "act"

signifies a single act as well as a series of acts. Similarly the word "omission" (as single omission?) as well as a

series of omissions. 17

Section 35, IPC -Whenever an act, which is criminal only by reason of its being done with a criminal

knowledge or intention, is done by several persons, each of such persons who joins in the act with such

knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that

knowledge or intention. 18

Section 37, IPC- When an offence is committed by means of several acts, whoever intentionally co-operates

in the commission of that offence by doing any one of those acts, either singly or jointly with any other person,

commits that offence. 19

Section 38, IPC- Where several persons are engaged or concerned in the commission of a criminal act, they

may be guilty of different offences by means of that Act. 20

State vs Saidu Khan And Anr, AIR 1951 All 21 21

AIR 1924 Cal 545 22

1945 A.L.J.344; AIR(32) 1945 P.C.18 23

Barendra Kumar v. Emperor AIR 1924 Cal 545, P.211 24

Supra, P. 217

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relevant circumstances of the case. Care must be taken not to confuse the same or similar

intention with common intention; the partition which divides “their bounds” is often very

thin; nevertheless the distinction is real and substantial, and if over looked will result in

miscarriage of justice. The inference of common intention within the meaning of the term

Sec. 34 should unless it is a necessary inference deducible from the circumstance of the

case”.

In Raju PandurangMabale v. State of Maharashtra25

observed, “The provision is intended to

meet a case in which it may be difficult to distinguish between acts of individual members of

a party who act in furtherance of the common intention of all or to prove exactly what part

was taken by each of them”.

Section 34 is an interpretative provision which lays down the commonsense principle that if

two or more persons do a thing jointly it is just the same as if each of them had done it

individually26

. To attract the principle of joint liability under S. 34 there should be (a) a

criminal act which is jointly committed by several persons, and (b) a common intention

animating all of them in furtherance of which the criminal act is committed27

The rule of joint liability under section 34 only a rule of evidence does not create a specific

offence was held in Gurdatta Mal V. Uttar Pradesh28

. The liability of a one person for an

offence committed by another in the course of criminal act perpetrated by several persons

arises under 34 if such act is done in furtherance of common intention of the person who

jointly commits the crime29

. At the same time if two persons commit the crime jointly but

through independent act not in furtherance of any common intention, then section 34 has

no application. The common intention should be shown to be premeditated. It must be

shown that there was a prior meeting of minds which activated the common intention

leading to the commission of the criminal act. However, in few cases which the common

intention may develop on the spot, after the offenders has gathered30

.

In order to invoke section 34, the Supreme Court has reiterated in numerous cases that

common intention implies a pre arranged plan and it should be proved by the prosecution that

the criminal act was done in concert pursuant to the pre arranged plan. In Pandurang V. State

25

(2004) 4 SCC 371 26

Suresh v. State ofU.P, (2001) 3 SCC 673 27

.Hari Ram v. State ofU.P., (2004) 8 SCC 146, para 13. See also Anil Sharma v. State of Jharkhand, (2004) 5

SCC 679. See also V.Balasubramanyam, „Group Liability’ in Prof. Chandrasekharan Pillai and Shabistan

Aquil (revised), Essays on the Indian Penal Code, Indian Law Institute, (1st ed) 2005

28 AIR 1965 SC 257

29 State of Madhya Pradesh v. Deshraj, AIR 2004 SC 216

30 KI. Vibhute, “ PSA Pillais Criminal law” , Lexis Nexis, (12

th ed) 2014

10

of Hyderabad31

the apex court held that “common intention under section 34 pre supposes

a prior concert..... Accordingly there must have been a prior meeting of minds. Several

persons can simultaneously attack a man and each can have the same intention, namely,

the intention to kill, and each can individually inflict a separate fatal blow and yet none

would have the common intention required by the specific section because there was no

prior meeting of minds to form a pre-arranged plan. In such cases, each would be

individually liable for whatever injury he caused but none would be vicariously convicted

for the act of any of the others; and if the prosecution cannot prove that his separate blow

was a fatal one, he cannot be convicted of the murder, however clearly an intention to kill

could be proved in this case...”32

Further the Supreme Court also noticed that the prior concert need not be something always

very much prior to the incident, but could well be something that may develop on the spot,

on the spur of the moment.

In Kripal V. State of Uttar Pradesh33

, again the Apex Court reiterated that common intention

may develop during the course of occurrence and could develop on the spur of the moment.

On the issue of common intention, arising suddenly the supreme Court ruled that “the

common intention to bring about a particular result may develop on the spot as between a

number of person, with reference to the facts of the case and circumstances of the salutation.

Whether in a proved situation all the individuals concerned therein have developed only

simultaneous and independent intentions or whether a simultaneous consensus of their minds

to bring about a particular result can be said to have developed and thereby intended by all of

them, is a question that has to be determined on the facts”34

At this juncture, it would be more appropriate to look into the difference between common

intention and similar and same intention. This question came before the supreme court in

Dukhmochan Pandey V. State of Bihar35

, held that “Common intention which developed at

the spur of the moment is different from a similar intention actuated a number of persons at

the same time, and ... the distinction must be born in the mind which would be relevant in

deciding whether section 34 of the IPC can be applied to all those who might have made

some overt act on the spur of the moment... The distinction between a common intention and

31

AIR 1955 SC 216 32

Supra, para 37 33

AIR 1954 SC 706 34

Supra, Para 6 35

AIR 1998 SC 40,

11

a similar intention may be fine, but nonetheless a real one and if overlooked, may lead to

miscarriage of justice”

It is necessary that intention of each one of several person be known to each other or it

must be shared between them for constituting common intention under section 34. Same

intention of several person does not constitute common intention unless its has been

shared among the accomplice. Hence, in cases where all persons having same or similar

intention are physically present at the same time and at the place where offence is being

committed are not jointly responsible for the offence committed. Each one will only be

liable for his acts.36

And also mere presence of accused together is not sufficient to hold the

presumption that they shared the common intention to commit the offence in question.37

In Jai Bhagwan v. State of Haryana38

, held that in order to invoke section 34, apart from the

fact that there should be two or more accused, two factors must be established (i) common

intention and (ii) participation of accused in the commission of the crime. If the common

intention is proved but not the overt act is attributed to the individual accused, section 34

will be attracted as essentially in involves vicarious liability but if the participation of the

accused in the crime is proved and common intention is absent, section 34 has no

application.

Common Object and Common Intention- A comparative analysis

Section 14939

of Chapter VII of the IPC dealing with the “Offences against Public

Tranquillity” creates a specific offence and declares that a member of an unlawful assembly40

is liable for any offence committed by the other fellow members in prosecution of the

common object of that assembly. The essentials of this provision are:

1. There must be an unlawful assembly.

2. The offence must have been committed by one or the other member of the assembly

in prosecution of the common object of the unlawful assembly; and

3. The offence must be such as the members of the unlawful assembly knew it to be

likely to be committed in prosecution of the common object.41

36

Dani Singh v. State of Bihar, (2004) CrLJ 3228 (SC); Papu alias Susantha Das v.State, (1999)CrLJ 738(SC) 37

State of Uttar Pradest v. Sahrunnisa, (2009) 15 SCC 442, Arun V. State, AIR 2009 SC 1256 38

AIR 1999 SC 1083 39

Secton 149, Indian Penal Code, 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. 40

Section 141, Indian Penal Code explains when an assembly is designated as “ unlawful assembly” 41

Dukhmochan Pandey V. State of Bihar, AIR 1998 SC 40

12

However, it doesn‟t mean that the member of an unlawful assembly is answerable for every

act committed by the fellow associate during the time they engaged in the commission of the

offence. It is only in two cases, where a person is held criminally liable for the offence

committed by the other member of unlawful assembly. Firstly, where the offence is

committed in prosecution of the common object of the unlawful assembly and secondly,

where the members of the unlawful assembly knew that such an offence is likely to be

committed in prosecution of that common object42

.

The essence of joint liability under section 149 is that the criminal act must have been done

with a view to fulfil the common object of an unlawful assembly. If the prosecution fails to

prove that the act has been done in prosecution of common object, a member of an unlawful

assembly cannot be held liable for the offence committed by another member of such an

assembly or under section 149. In Nanak Chand v. State of Punjab43

, the Supreme Court

observed that

“There is a clear distinction between the provisions of section 34 and 149 of the Indian

Penal Code and the two sections are not to be confused. The principal element in section

34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of

the common intention several acts may be done by several persons resulting in the

commission of that crime. In such a situation section 34 provides that each one of them

would be liable for that crime in the same manner as if all the acts resulting in that crime

had been done by him alone. There is no question of common intention in section 149 of

the Indian Penal Code. An offence may be committed by a member of an unlawful

assembly and the other members will be liable for that offence although there was no

common intention between that person and the other members of the unlawful

assembly to commit that offence provided the conditions laid down in the section are

fulfilled. Thus if the offence committed by that person is in prosecution of the common

object of the unlawful assembly or such as the members of that assembly knew to be likely

to be committed in prosecution of the common object, every member of the unlawful

assembly would be guilty of that offence, although there may have been no common

intention and no participation by the other members in the actual commission of that

offence”.

42

K D Gaur, “ Criminal Law- Cases & Materials” Lexis Nexis, (8th

ed) 2015 43

AIR 1955 SC 274

13

In Chittarmal v. State of Rajasthan44

, the apex court held that a clear distinction is made out

between common intention and common object is that common intention denotes action in

concert act and necessarily postulates the existence of a pre arranged plan implying a prior

meeting of the minds, while common object does not necessarily require proof of prior

meeting of minds or pre concert. Though there is a substantial difference between the two

sections, they also to some extent over lap and it is a question to be determined on the facts of

each cases

Distinction between section 34 and 149 of IPC

Section 34 & 149 of Indian Penal Code deals with constructive liability. Both the section

holds persons acting in concert with others to accomplish an unlawful object, criminally

responsible for such acts on the principle of joint and constructive liability. However, there is

a clear distinction between the elements and scope of section 34 &149

Firstly, section 34 is an explanatory section, that is, of general nature, and enunciates a

principle of criminal liability and does not create a specific offence45

. Whereas section 149

creates a specific offence in the membership of an unlawful assembly itself for which the

participants may be liable for punishment46

. While section 34 creates joint liability, in which

if individuals share a common intention and do acts furthering the same, then all of them are

held liable for all acts committed.

Secondly, Common intention requires prior meeting of mind and unity of intention, common

object may be formed without these ingredients.47

It is quite possible to consider a situation

when the common object of the members of the unlawful assembly is one, but the intention

of the participants may differ. Thus under section 149, if any member of the unlawful

assembly commits an offence, others are also liable, although, they may not have the same

intention , but only shared the common object. This is of course if either of the two

conditions are satisfied, namely: (i) the offence was committed in prosecution of the common

object of the assembly; or (ii) that the offence committed is of such a nature that other

members knew it likely be committed in prosecution of the common object48

.

44

AIR 2003 SC 796 45

Hemachand Jha v. State of Bihar (2008) CrLJ 3203; 46

Sheo Mahadeo Singh v. State of Bihar, (1970); State of Uttar Pradesh v. Iftikar Khan AIR 1973 SC 863 47

Raj Nath v. State of Uttar Pradesh, AIR 2009 SC 1422; Maranadu v.State of Inspector of Police, Tamil Nadu,

(2008) CrLJ 4562 (SC) 48

Supra 28, P. 266

14

Thirdly, for invoking section 34, it is sufficient that there must be two or more persons

involved whereas under section 149, there should be minimum five and more to attract the

coverage of the provision.

Fourthly, section 34 imposes liability on the basis of participation of the members in

execution of the common intention of the group, whereas section 149 lays stress on the

membership of an unlawful assembly. In other words, the element of participation in action,

which is the leading feature of section 34, is replaced in section 149 by membership of that

assembly at the time of the commission of the offence49

.

Fifthly, Under section 34 over act is a condition precedent for being him liable whereas in

section 149 mere presence in the unlawful assembly is quite enough to fix the criminal

liability.

49

Supra 39, P. 234

COMMON INTENTION ,SECTION 34 COMMON OBJECT, SECTION 149

1. In common intention number of persons

must be more than one . But its not

compulsory that the number of members

should be five

But in unlawful assembly it must consist of at least five

members

2. Common intention does not create specific

offence, but only a statues of rule of

evidence

It create specific and substantive offence

3. It may be of any type It must be one of the object mentioned in section 141

i.e. to commit an offence under such object

4. Prior meeting of minds is necessary before

a wrong act is done under this section. It

requires that all the accused must meet

together before actual attack participated y

all takes place

Prior meeting of minds is not mandatory. Mere

membership of unlawful assembly at the time of

committing crime is sufficient

5. Only offence committed under section 34 in

furtherance of common intention is

punishable

Members of unlawful assembly under this section are

not only liable for act done in prosecution of common

object to be done in prosecution of the unlawful object

Difference Between section 34 &

149 of IPC

15

Conclusion

The entire object behind the concept of constructive liability is to punish the entire

accomplice who aids to commit crime either jointly or individually. The relevance of this

provision can be better understood if we think about the non inclusion of section 34 & 149 in

the penal code. Initially there were lot of ambiguity around the section 34 and 149 which was

removed to an extent by the Privy Council in Barendra Kumar Ghose dictum. Later, the First

Law Commission Report also recommended adding “two or more persons” instead of

“several persons” to section 34. It helped for a better understanding of this provision.

The underlying object of criminalisation of unlawful assembly under section 149 is to

discourage tumultuous assemblage of person to preserve public peace. It has been reiterated

by the Supreme Court that the presence of the accomplice give encouragement to the actual

offender to commit the offence and in such cases the accomplice cannot be exempted from

the criminal liability. This is not the only idea behind section 149 but also the entire concept

of joint liability springs on this idea.

Reference

1. JW Cecil Turner, “Kennys outlines of Criminal Law”, Cambridge (18th

ed)1962

2. JW Cecil Turner, Russell on Crime”, Stevens & Sons , London( 12th

ed)1982

3. Glanville Williams, “ Criminal Law: The General Part” Stevens & Sons , London( 2nd

ed) 1961, p. 18

4. K.I. Vibhute, “ PSA Pillas Criminal Law”, Lexis Nexis, New Delhi ( 12th

ed) 2014

5. K D Gaur, “ Criminal Law- Cases & Materials” Lexis Nexis, (8th

ed) 2015.

6. V.Balasubramanyam, „Group Liability’ in Prof. Chandrasekharan Pillai and

Shabistan Aquil (revised), Essays on the Indian Penal Code, Indian Law Institute, (1st

ed) 2005.

7. J W Salmond , The Law of Torts, Stevens & Haynes, London (1907).

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