AMITY LAW SCHOOL

PRIYESH MISHRA

B.A. LL.B (Hons) – III Sem

JOINT LIABILITY An overview of the principle of joint criminal liability under IPC, with special reference to Sections 34 & 149

ACKNOWLEDGEMENT

Upon the successful completion of this project, I would wish to thank everyone who

has been a part of it. First and the foremost I thank Prof G.K. Chandani for the clear

concepts which he provided us about the principles of criminal law, which rendered

great support during the drafting of this submission.

I also thank Prof K.D. Gaur for solving all my queries regarding the intricacies

regarding the topic and thus helping me draft the submission in the best possible

way.

At last, my heartiest gratitude towards all the respected authors of the numerous

books I referred to, during the research process for this submission. It is truly said,

Books are our best friends.

JOINT CRIMINAL LIABILITY : AN OVERVIEW

DEFINITION OF LIABILITY

Liability means legal responsibility for one's acts or omissions. Failure of a person or

entity to meet that responsibility leaves him/her/it open to a lawsuit for any

resulting damages or a court order to perform (as in a breach of contract or

violation of statute). In order to win a lawsuit the suing party (plaintiff) must prove

the legal liability of the defendant if the plaintiff's allegations are shown to be true.

This requires evidence of the duty to act, the failure to fulfill that duty, and the

connection (proximate cause) of that failure to some injury or harm to the plaintiff.

Liability also applies to alleged criminal acts in which the defendant may be

responsible for his/her acts which constitute a crime, thus making him/her subject

to conviction and punishment.

Example: Jack Jumpstart runs a stop sign in his car and hits Sarah Stepforth as she is

crossing in the cross-walk. Jack has a duty of care to Sarah (and the public) which he

breaches by his negligence, and therefore has liability for Sarah's injuries, and gives

her the right to bring a lawsuit against him. However, Jack's father owns the

automobile and he, too, may have liability to Sarah based on a statute which makes a

car owner liable for any damages caused by the vehicle he owns. The father's

responsibility is based on "statutory liability" even though he personally breached

no duty. A signer of promissory note has liability for money due if it is not paid, and

so would a co-signer who guarantees it. A contractor who has agreed to complete a

building has liability to the owner if he fails to complete on time.

JOINT CRIMINAL LIABILITY

Joint criminal liability or joint criminal enterprise, hereinafter referred to as JCE, is

an important concept in international criminal law. The development of JCE has

been controversial from the beginning, and many scholars have called for limited

and cautious application of a principle that could lead to “guilt by association.”

Indeed, one scholar argues that the JCE doctrine has the potential “to stretch

criminal liability to a point where the legitimacy of international criminal law will be

threatened.”

Before stepping in deep, it is important to understand the basics of JCE liability. A

“joint criminal enterprise” is not an element of a crime. Rather, joint criminal

enterprise is a mode of liability whereby members are attributed with criminal

culpability for crimes committed in furtherance of a common purpose, or crimes

that are a foreseeable result of undertaking a common purpose.

There are three different forms of JCE : the “basic” form (“JCE I”), the “systemic”

form (“JCE II”), and the “extended” form (“JCE III”). All forms of JCE share a

common actus reus, consisting of the following elements:

1. A plurality of persons acting in concert;

2. The existence of a common plan, design or purpose which

amounts to or involves the commission of a crime provided for in

the Statute;

3. And The Accused “significantly” contributed to the common plan,

design, or purpose.

The three forms of JCE differ according to the mens rea of the Accused. JCE I liability

attaches when an Accused intended to participate in a JCE and intended the

commission of a crime or crimes to further the JCE’s common plan. The Accused can

be held liable for a crime even if he was not directly involved in its physical

perpetration, as long as his contribution to its commission was “significant.”

JCE II requires that the Accused had personal knowledge of a system of ill-

treatment and intended to further that system.

JCE III is a constructive form of liability. Once it has been established that an

Accused was a member of a JCE, he can be held liable for unintended but foreseeable

crimes that were committed in furtherance of the JCE’s common plan. For both JCE

JCE III, the Accused and all members of the JCE and I must intend to participate in

the same common criminal plan. This means that all members of the JCE must share

the same intent. JCE III extends liability for crimes committed outside the common

criminal plan that were committed in furtherance of the common plan and were a

natural and foreseeable consequence of that plan.

Joint criminal enterprise is a theory of liability that has been widely applied by

international criminal tribunals and roundly criticized by scholars, defense

attorneys, and other practitioners. These critics argue that JCE, without careful and

limited application by judges and prosecutors, can violate the fair trial rights of

defendants or allow prosecutors to get around mens rea requirements for serious

specific intent crimes such as genocide. Proponents of JCE argue that it is necessary

to allow prosecution of those most responsible for international atrocity crimes:

persons often far removed from the actual commission of the crime, but responsible

for them nevertheless. However, JCE cannot serve its intended purpose if judges at

the highest level of international criminal court apply it incorrectly. Below, this

article describes the misapplication of JCE law at the SCSL. It then argues that this

misapplication threatens the legitimacy of international criminal law and confirms

scholars’ warnings of the consequences of not limiting or reigning in the use of JCE.

There are several provisions in the Indian Penal Code which determine the liability

of a person committing a crime in combination of some others. In these cases, the

persons committing it, either have common intention or common object.

In IPC, the criminal liability is determined by the in which the person is associated

with the crime. There are several ways in which a person becomes a participant in a

crime-

1. He himself commits it.

2. He shares in the commission of the crime.

3. When he sets a third party to commit the crime.

4. Helps the offender, in screening him from Law.

The second point is what joint liability is.

Basically, sections 34-38 and 149 of IPC deals with situations where joint criminal

liability is formed.

Basically, to understand joint criminal liability, sections 34 and 149 are important to

be understood.

SECTION 34

Section 34 - Acts done by several persons in furtherance of common intention

- 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.

Section 34 has been enacted on principle of joint liability in the doing of a criminal

act, the section is only a rule of evidence and does not create a substantive offence.

The distinctive feature of the section is the element of participation in action. The

liability of one person for an offence committed by another in the course of criminal

act perpetrated by several person arises under Section 34 if such criminal act is

done in furtherance of a common intention of the person who join in committing the

crime. Direct proof of common intension is seldom available and, therefore, such

intention can only be inferred from the circumstances appearing from the proved

facts of the case and the proved circumstances. In order to bring home the charge of

common intention, the prosecution has to establish by evidence, whether direct or

circumstantial, that there was plan or meeting of minds of all the accused persons to

commit the offence for which they are charged with the aid of Section 34, be its pre-

arranged or on the spur of the moment; but it must necessarily be before the

commission of the crime. The true concept of the section is that if two or more

persons intentionally do an act jointly, the position in law is just the same as if each

of them has done it individually by himself.

The section does not say “the common intentions of all” nor does it say “an intention

common to all”. Under the provisions of Section 34 the essence of the liability is to

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

doing of a criminal act in furtherance of such intention. As a result of the application

of principles enunciated in Section 34, when an accused is convicted under Section

302 read with Section 34, in law it means that the accused is liable for the act which

caused death of the deceased in the same manner as if it was done by him alone. 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.

Persons acting in furtherance to common intention to commit a crime would all be

liable to the whole crime, even if they were not present at the scene of crime or did

not participate in the commission of the crime, the Supreme Court has stated that -

"even the doing of separate, similar or diverse acts by several persons, so long as

they are done in furtherance of a common intention, render each of such persons

liable for the result of them all, as if he had done them by himself.....," a bench of

Justice M.B. Shah and Justice Doraiswamy Raju said.

Common intention implies a pre arranged plan, which means prior meeting up of

minds. Common intent comes into light before the commission of the crime. Merely

seeing two accused at the same spot does not account to the common intention, but

it is necessary to prove the meeting up of minds prior to the actual commission of

crime.

GUIDING PRINCIPLE OF COMMON INTENTION

In Mahboob Shah v. Emperor1, the following principles were laid down by the

court :

a. Under section 34 of IPC, essence of liability is to be found in the existence of a

common intention, animating the accused, leading to doing of a criminal act in

furtherance of such intention.

b. To invoke the aid of section 34 successfully, it must be shown that the

criminal act complained against was done by one of the accused persons in

furtherance of the common intention; if it is so then liability for the crime may

be imposed on any one of the persons in the same manner as if the acts were

done by him alone.

c. Common intention within the meaning of section 34 implies a prearranged

plan, and to convict the accused of an offence applying the section it should be

proved that the criminal acts were done pursuant to the prearranged plan.

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

intention of an individual, in most cases it has to be inferred from his act or

conduct or other relevant circumstances of the case

e. Care must be taken not to confuse 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 overlooked will

result in miscarriage of justice.

1 721 IA 148 IPC: AIR 1945 PC 118

f. The inference of common intention within the meaning of the term under

section 34 should never be reached unless it is a necessary inference

deductable from the circumstances of the case.

COMMON INTENTION SHOULD BE PRIOR TO THE OCCURRENCE

In Pandurang v. State of Hyderabad2, the Hon’ble Supreme Court observed that’ it is

well established that a common intention presupposes prior concert. It requires

pre-arranged plan because before a person can be vicariously convicted for the

criminal act of another, the act must have been done in furtherance of the common

intention of them all. The inference of common intention should never be reached

unless it is a necessary inference deducible from the circumstance of the case. The

incriminating facts must be incompatible with the innocence of the accused and

incapable of explanation on any other reasonable hypothesis.

INTENTION ON SPOT-

In certain cases, an intention can be formed on the spot. It is not always necessary

that all the accused have meditated the crime, well in advance. In cases, the

intention can be formed on the spot. In a fight, all the accused may at a point decide

to take out their revolvers and shoot the people of the other party, in order to kill

them. Here the decision of killing the people of the other party was taken on the

spot.

2 AIR 1955 SC 216

The issue of liability of different members of a group of people divided into mutually

antagonistic or hostile groups, especially when there is a free fight between them, is

one of the most difficult aspects of joint liability.

In Balbir Singh v. State of Punjab3 a similar question was raised, wherein four

persons each belonging to two different groups attacked each other and in the

result, one person died. Both, the trial court and the High Court had held that there

was a free fight and every assailant was accountable for his own acts committed.

However, the Supreme Court held that, in a free fight, there was a movement of body

of the victims and assailants and in such a situation it will be difficult to specifically

ascribe to one accused the intention to cause injuries sufficient to cause death.

In Furtherance of Common Intention –

The principle of joint liability arises out of common intention followed by an act in

furtherance of such common intention. This has been clearly stated in the case of

Mahboob Shah v. Emperor wherein one Allah Dad was shot dead by a bullet from

the gun used by one of the accused who came to rescue their cousin, who had been

attacked by Allah Dad and shouted for help.

The two accused were armed with a guns, and each one of them aimed at two

different individuals shot from the gun of Wali Shah, the latter only received injuries

from a bullet shot by Mahboob Shah. Of the three accused, Wali Shah, whose shot

killed Allah Dad, absconded and could not be brought on trial. The other two were

tried and prosecuted under section 302 read with section 34 IPC. The sessions judge

convicted him and awarded death penalty.

3 AIR 1955 SC 1956

On appeal their lordship of the Lahore HC held that the case fell within the ambit of

section 34 and as to their “common intention”, it was said that “common intention to

commit the crime which was eventually committed by Mahboob Shah and Wali Shah

came into being when Ghulam Qasim Shah shouted to his companions to come to his

rescue, and both of them emerged from behind the bushes and fired from their

respective guns.”

Their Lordships of the Privy Council however disagreed with the view of the judges

of the Lahore HC. In their opinion there was no evidence of the common intention to

the evidence that the appellant “just have been acting in concert with Wali Shah

pursuance of a concerted plan when he along with him rushed to the help of Ghulam

Qasim.” In their view the common intention of both was to rescue Ghulam Qasim

and both of them picked up different individuals to deal with. Evidence is lacking to

show that there was any pre-mediation to bring about the murder of Allah Dad.

At the most they can be stated to have a similar intention, but not a common

intention and one should not be confused with each other. Hence, the Privy Council

set aside the conviction and sentence of murder as imposed by the High Court.

PARTICIPATION –

Participation is a necessary element or condition precedent to finding of joint

liability. The Supreme Court in the case of Kantiah Ramayya Munipally v. State of

Bombay4 observed that, it is the essence of section 34 that the person must be

physically present at the actual commission of crime.

He need not be present on the actual spot, he can, for instance, can stand outside to

warn his companions about any approach of danger.

4 AIR 1955 SC 287

SECTION 35 –

Section 35 of the IPC is in furtherance of the preceding section 34. It reads that

Sec 35 - When such an act is criminal by reason of its being done with a

criminal knowledge or intention.

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.

If several persons, having the same criminal intention or knowledge jointly murder,

each one would be liable for the offence as if he had done the act alone; but if several

persons join in the act, each with different intention or knowledge from the others,

each is liable according to his own intention or knowledge.

Reference can be made to the case of Adam Ali Taluqdar5 where A and B beat C who

died. A had an intention to murder C, and knew that his act would cause his death. B

on the other hand intended to cause grievous hurt and did not knew that his act will

cause C’s death. Hence, A was held guilty for murder whereas B was charged with

grievous hurt.

5 AIR 1927 Cal 324

SECTION 149

Section 149 - Every member of unlawful assembly guilty of offence committed

in prosecution of common object

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 or 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.

ESSENTIAL ELEMENTS

To invoke section 149 IPC, the following ingredients must be present –

a. There must be an unlawful assembly6. There must be at least five people in

such an assembly.

6 141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First-To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second-To resist the execution of any law, or of any legal process; or Third-To commit any mischief or criminal trespass, or other offence; or Fourth-By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth-By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

b. There must be some common object of such an unlawful assembly. Here the

word “common” must be distinguished from ”similar”; it means “common to

all and known to the rest of them and also shared by them”.

c. There must be a commission of offence by anyone or more members of such

unlawful assembly.

d. The commission of such offence must be in prosecution of the common object

shared by all and each of the members of such unlawful assembly.

e. The offence committed in prosecution of a common object must be such that

each one of the members of such unlawful assembly knew was likely to be

committed.

In Mizaji v. State of Uttar Pradesh7 it was held that section 149 IPC has two parts.

The liability of a member of an unlawful assembly may arise for an offence

committed by any member of the assembly in two ways.

The first is where the other members commit an offence, which was in fact the

common object of the assembly.

The second is where the common object to commit an offence was different from

the offence, which was actually committed.

For example, the accused X, Y, Z, J and K were alleged to have entered into A’s house

in order forcible possession of the house. With the lathis they were carrying, grave

injuries were inflicted on A’s limb and he was dragged out of the house to some

distance where either J or K shot him with a hidden pistol.

7 AIR 1959 SC 572

In such a case, the member not actually committing the offence will be liable for that

offence only if he knew that such offence was likely to be committed in the course of

prosecution of the common object to commit the offence originally thought of. The

expression “know” does not mean a mere possibility, such as might or might not

happen, it imports a higher degree of probability. Further, it indicates a state of

mind at the time of commission of the offence and not the knowledge acquired in

the light of subsequent events.

Under section 149, the liability of the other members for the offence committed

during 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. Such knowledge may be reasonably collected

from the nature of the assembly, arms or behaviour at or before the scene of action8.

8 Gajanand v. State of Uttar Pradesh AIR 1954 SC 695

DIFFERENCE BETWEEN S.34 & S.149

There is a clear distinction between the provisions of s. 34 and s. 149 of the Indian

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

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 s. 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 s.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.

There is a difference between object and intention. Although, the object may be

common, the intentions of the several members of the unlawful assembly may differ

and indeed may be similar only in one respect namely that they are all unlawful,

while the element of participation in action, which is the leading feature of s. 34, is

replaced in s. 149 by membership of the assembly at the time of the committing of

the offence.

A charge for a substantive offence under section 302, or section 325 of the Indian

Penal Code, etc. is for a distinct and separate offence from that under section 302,

read with section 149 or section 325, read with section 149, etc.

A person charged with an offence read with s. 149 cannot be convicted of the

substantive offence without a specific charge being framed as required by s. 233 of

the Code of Criminal Procedure.

BIBLIOGRAPHY

Gaur KD, A Textbook on Indian Penal Code, 2009, Fourth Edition, Universal

Law Publishing Co.

Mishra SN, Indian Penal Code, 2008, 16th Edition, Central Law Publications

Gaur KD, Criminal Law : Cases and Materials, 2009, 5th Edition, Lexis Nexis

Butterworths Wadhwa

Bishop’s Commentaries on Criminal Law, Volume 1