National Law University Odisha
Criminal Law I Project Submission
Parasitic Liability and the accessory
Hemant Dhillon 2!"# $%$%&% LL%$% # !' $%&% LL%$% (Hons%) II *ear+ I, Semester Submitted on - "#"#2!. National Law University Odisha /athajodi Cam0us+ S1C !3+ CD&+ Cuttac4
Criminal Law Project
TABLE OF CONTENTS
Contents Table Table of contents........................................... contents.................................................................. .............................................. ............................................... ........................ .......2 Object............................................ Object................................................................... .............................................. .............................................. .............................................. ....................... .3 Research Methodology................................. Methodology........................................................ .............................................. .............................................. ................................4 .........4 Research Questions.......................................... Questions................................................................. .............................................. ................................................... ............................ 5 Mode of Citation............................................. Citation.................................................................... .............................................. ............................................... ........................ .....5 Introduction....................................... Introduction.............................................................. .............................................. .............................................. ........................................... .................... !efinition of "iability.................. "iabilit y......................................... .............................................. ................................................................... ............................................ #oint cri$inal cri $inal liability.................. liabilit y......................................... .............................................. ................................................................... ............................................ !egrees of %artici%ation........................ %artici%ation............................................... .............................................. ..............................................................& .......................................& 'nglish "a(....................................... "a(.............................................................. .............................................. .................................................... ............................. .........& ......... & Indian "a(......................................... "a(................................................................ .............................................. ................................................. .......................... ..........)* .......... )* Co$$on Intention......................................... Intention................................................................ .............................................. .............................................. .............................)) ......)) +ection 34........................................ 34............................................................... .............................................. .............................................. ....................................... ................ )) ,uiding -rinci%les of co$$on intention........................................... intention......................................................................... .............................. )3 Co$$on intention should be -rior to the occurrence........................ occurrence............................................... ..............................)4 .......)4 Intention on the s%ot....................................... s%ot.............................................................. .............................................. ...........................................)4 ....................)4 In urtherance of Co$$on Intention..................................................... Intention...............................................................................)5 ..........................)5 -artici%ation.....................................................................................................................) +ection 35........................................ 35............................................................... .............................................. .............................................. ...................................) ............)
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Co$$on object........................................................................................................................ )0 +ection )4&...........................................................................................................................)0 'ssential 'le$ents...........................................................................................................)0 !ifference bet(een +.34 1 +.)4&............................................................................................)& ibliogra%hy.............................................................................................................................22
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OBJECT
This %roject (hile acno(ledging the basic ele$ents of co$$on intention and co$$on object in the doctrine of #oint Cri$inal 'nter%rise brings out a contrast bet(een the si$ilar looing conce%ts though they being uite different fro$ each other. It also d(ells into the different degrees of %artici%ation in a cri$e and ho( the scenario is different in Indian cri$inal +yste$ as co$%ared to the 'nglish cri$inal +yste$. The doctrine of #oint Cri$inal 'nter%rise 6#C'7 has %ro8oed scholarly debate a$ong scholars falling into t(o ca$%s. The first ca$% argues that the doctrine should be abandoned as funda$entally inco$%atible (ith basic %rinci%les of indi8iduali9ed cri$inal la( (hile a second ca$% defends the doctrine fe( or only $inor a$end$ents. The %ur%ose of this %roject is to analyse the %rosecutorial as%ects of legality and legiti$acy regarding the a%%lication of #C' as a tool in the %rosecution. On one hand the conce%t of #C' is (idely acce%ted and routinely a%%lied before the Courts .The courts recogni9e and reaffir$ the la(fulness and effecti8eness of the a%%lication of #C' in the %rosecution against the accused. On the other hand the doctrine of #C' has also been highly attaced and criticised by cri$inal la( e:%erts in $any as%ects in %articular the e:%ansi8eness of the doctrine raises a %ros%ect of ;guilty by association< and in so$e circle #C' has been referred to as ;just con8ict e8eryone<.
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RESEARCH METHODOLOGY
The Researcher has atte$%ted to study the nature and the e8olution of Inchoate offences along (ith the general theoretical stances as (ell as the Indian la( %ro8isions (hich tacles the offences (hich co$e under the afore$entioned to%ic. The $ode of study has in8ol8ed a co$bination of facts cases and e:%lanation deri8ed fro$ boos journals online sources as (ell as authorities. . The sources used (ere secondary in nature The researcher has atte$%ted to fist define the conce%ts in8ol8ed follo(ed by the e:%lanation and the %ro8isional as%ects cou%led (ith case authorities (here8er %ossible.
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RESEARCH !EST"ONS
The Research Questions for the gi8en to%ic are as follo(s )7
=hat is -arasitic "iability >
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=hat are the degrees of -artici%ation in cri$e >
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?o( are Co$$on Intention and Co$$on Object different fro$ each other >
MODE OF C"TAT"ON
The $ode of Citation follo(ed is the OSCOLA citation $ethod.
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"NTROD!CT"ON
!'I@ITIO@ O "IAI"ITB
"iability $eans legal res%onsibility or obligation for ones acts or o$issions. ailure on %art of a %erson or entity to $eet that res%onsibility lea8es hi$DherDit o%en to a la(suit for any da$ages resulting out of failure or a court order to %erfor$ 6as in a breach of contract or 8iolation of statute7. In order to (in a la(suit the %laintiff $ust %ro8e the legal obligation of the defendant if the %laintiffs allegations are held to be true. This reuires e8idence of the duty to act the inability to fulfil that duty and the connection 6%ro:i$ate cause7 of that failure to %erfor$ to so$e injury or har$ caused to the %laintiff. "iability also a%%lies to alleged cri$inal acts in (hich the defendant $ay be res%onsible for hisDher acts (hich constitute a cri$e thus $aing hi$Dher subject to con8iction and hence %unish$ent.
#OI@T CRIMI@A" "IAI"ITB
#oint cri$inal enter%rise or cri$inal liability hereinafter referred to as JCE is an essential conce%t in international cri$inal la(. The de8elo%$ent of #C' has been found to be contro8ersial fro$ the beginning and nu$erous scholars ha8e called for li$ited and careful a%%lication of a %rinci%le that could lead to E #$ilt %& a''ociation(F efore d(elling in dee% it is i$%ortant to understand the basics of #C' liability. A E joint criminal enter)ri'e *JCE+ F is not an ele$ent of a cri$e. Rather joint cri$inal enter%rise is
a $ode of liability (hereby $e$bers are ascribed (ith cri$inal cul%ability for cri$es that ha8e been co$$itted in furtherance of a co$$on %ur%ose or cri$es those are a foreseeable result of undertaing a co$$on %ur%ose.
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There are three different inds of #C' G t,e -%a'ic. /orm *-JCE ".+ t,e -'&'temic. /orm *-JCE "".+ and t,e -e0ten1e1. /orm *-JCE """.+ . All for$s of #C' share a co$$on actus reus consisting of the follo(ing
ele$entsG
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A %lurality of %ersons acting in concertH The e:istence of a co$$on %lan design or %ur%ose (hich a$ounts to or in8ol8es the
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co$$ission of a cri$e %ro8ided for in the +tatuteH And the EsignificantF contribution of the accused to the co$$on %lan design or
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%ur%ose.
The three for$s of #C' 8ary according to the men' rea of the Accused. #C' I liability is attracted (hen an Accused intended to %artici%ate in a #C' and intended the co$$ission of a cri$e in furtherance of #C'
#C' III is a constructi8e for$ of liability. Once established that an Accused (as a $e$ber of a #C' he can be held liable for unintended but foreseeable cri$es that (ere co$$itted in furtherance of the #C'
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There are se8eral %ro8isions in the Indian -enal Code 6I-C7 (hich deter$ine the liability of a %erson co$$itting a cri$e in co$bination of so$e others. In these cases the %ersons co$$itting it either ha8e co$$on object or co$$on intention. In I-C the cri$inal liability is deter$ined by the (ay in (hich the %erson is associated (ith the cri$e. There are se8eral (ays in (hich a %erson beco$es a %artici%ant in a cri$e • • • •
?e hi$self co$$its it. ?e shares in the co$$ission of the cri$e. =hen he sets a third %arty to co$$it the cri$e. ?el%s the offender in screening hi$ fro$ "a(.
asically sections 67869 and 37: of I-C deals (ith situations (here joint cri$inal liability is for$ed.
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DEGREES OF PART"C"PAT"ON
' @,"I+? "A=
'nglish "a( (ith reference to %artici%ants in a cri$e gi8es the follo(ing classification of cri$inals according to the role %layed by each G •
Princi)al in t,e /ir't 1e#ree G ?e (ho actually co$$its the cri$e 6 including he (ho
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gets it acco$%lished through innocent agent7 Princi)al in t,e 'econ1 1e#ree ; ?e (ho being %resent at the co$$ission of the cri$e aids and assists in its co$$ission
-rinci%als in the first degree are %ersons (ho %er%etrate a cri$e directly i.e. through their o(n hands or through an innocent $ediu$ i.e. a %erson lie a child belo( the age of discretion or a %erson of unsound $ind (ho by reason of either i$$aturity of understanding or of i$%air$ent of $ind is legally inco$%etent to co$$it a cri$e . Thus the %resence of the %rinci%als in the first degree at the occurrence of an offence is not essential . The distinction bet(een the t(o categories of %rinci%als in the first and second degree is of little %ractical conseuence since both are liable to be a(arded (ith eual %unish$ent. Those (ho are not %resent at the ti$e of co$$ission of deed but are associated (ith it either before or after its co$$ission are classified as G Acce''orie' %e/ore t,e /act ; Those (ho though not %resent in the scene of
occurrence or (here the cri$e is co$$itted counsel %rocure or co$$and another to co$$it the cri$e . Acce''orie' a/ter t,e /act ; Those (ho no(ing that a %erson has co$$itted an offence no(ingly recei8e relie8e co$fort harbour or assist hi$ fro$ esca%ing fro$ the clutches of la( . Accessories at the fact are generally classified as %rinci%als of the second degree that is as aiders and abettors of the %rinci%al offender in the co$$ission of the offence and (ho $ay )* / - a g e
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be actually or constructi8ely %resent in the scene of occurrence . They do not actually %artici%ate in the co$$ission of the cri$e . ut they re$ain %resent actually or constructi8ely at the occurrence of the cri$e and thereby aid assist encourage or abet co$$ission of the cri$e .
I @!IA@ "A=
The Indian Cri$inal +yste$ taes a totally different stance on degrees of %artici%ation. I-C $aes no distinction bet(een %rinci%als in either the first or second degree . All those (ho are %resent at the scene and %artici%ate in the co$$ission of a cri$e are liable either as the actual offender under the s%ecific sections of the code or under the %ro8isions go8erning the joint and constructi8e liability 6 +ection 34 and )4& I-C 7 . The I-C ho(e8er $aes a broad distinction bet(een a %rinci%al and an abettor (ho corres%ond roughly to accessories before the fact . +uch cases are dealt (ithin the cha%ter of the code under the ca%tion Of abet$ent fro$ section )*0 to )2* I-C. On the other hand (hen the role %layed by the indi8idual is that of an accessory after the fact the code %ro8ides for a substanti8e offence in such cases .
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COMMON "NTENT"ON
Co$$on Intention is generally no(n as a %rearranged %lan and acting in concert %ursuant to the %lan. It $ust be %ro8ed that the Cri$inal act (as done in concert %ursuant to the %rearranged %lan. It co$es into being %rior to the Co$$ission of the act in %oint of ti$e yet the ga% bet(een the t(o need not be a long one so$eti$es co$$on intention can be de8elo%ed on the s%ot. The funda$ental factor is a )re8arran#e1 )lan and to e:ecute the %lan for the desired results. 'ach of such %erson (ill be liable in an act done in furtherance of a co$$on intention as if the act (as done by hi$ alone. Co$$on Intention $ust not be confused (ith the si$ilar intention of se8eral %erson. To constitute co$$on intention it is necessary that the intention of each one of the$ be no(n to the rest of the$ and shared by the$.
+'CTIO@ 34
Section 67 8 Act' 1one %& 'e5eral )er'on' in /$rt,erance o/ common intention
=hen a cri$inal act is done by se8eral %ersons in furtherance of the co$$on intention of all each of such %ersons is liable for that act in the sa$e $anner as if it (ere done by hi$ alone. +ection 34 enshrines the %rinci%le of joint liability in the doing of a cri$inal act the section is only a rule of e8idence and does not create a se%arate substanti8e offence. The feature that $aes this section distinct is the ele$ent of %artici%ation in action. The liability of one %erson for an offence co$$itted by another in the course of cri$inal act %er%etrated by se8eral %erson arises under +ection 34 if such cri$inal act is done in furtherance of a co$$on intention of the %ersons (ho join to co$$it a cri$e. There is seldo$ any direct %roof of co$$on intension a8ailable and therefore such intention can only be inferred fro$ the circu$stances a%%earing fro$ the %ro8ed facts of the case and the %ro8ed circu$stances. )2 / - a g e
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In order to bring ho$e the charge of co$$on intention it $ust be established by the %rosecution by e8idence (hether direct or circu$stantial that there (as $eeting or %lan of $inds of all the accused %ersons to co$$it the offence for (hich they are charged (ith under +ection 34 be its %rearranged or on the s%ur of the $o$ent but it $ust be before the co$$ission of the cri$e. The true conce%t of the section is that if t(o or $ore %ersons intentionally do an act jointly the %osition in la( is just the sa$e as if each of the$ has done it indi8idually by hi$self. The section does not $ention Ethe co$$on intentions of allF nor does it say Ean intention co$$on to allF. Knder the %ro8isions of +ection 34 the essence of the liability is to found in the e:istence of a co$$on intention ani$ating the accused leading to the doing of a cri$inal act in furtherance of such intention. As a result of the a%%lication of %rinci%les enshrined in +ection 34 /or e0 (hen an accused is con8icted under +ection 3*2 read (ith +ection 34 legally it $eans that the accused is liable for the act (hich caused death of the deceased in the sa$e $anner as if it (as done by hi$ alone. The %ro8ision is intended to $eet a case in (hich it $ay be difficult to distinguish bet(een acts of indi8idual $e$bers of a %arty (ho act in furtherance of the co$$on intention of all or to %ro8e e:actly (hat %art (as taen by each of the$. A +u%re$e Court ench of #ustice M.. +hah and #ustice !orais(a$y Raju in the case of Go)inat, J,allar <' State o/ !P 3 has stated that
Le5en t,e 1oin# o/ 'e)arate2 'imilar or 1i5er'e act' %& 'e5eral )er'on'2 'o lon# a' t,e& are 1one in /$rt,erance o/ a common intention2 ren1er eac, o/ '$c, )er'on' lia%le /or t,e re'$lt o/ t,em all2 a' i/ ,e ,a1 1one t,em %& ,im'el/(((((2=
Co$$on intention i$%lies a %re arranged %lan (hich denotes %rior $eeting u% of $inds. Co$$on intent co$es into light before the co$$ission of the cri$e. Merely t(o accused being at the sa$e s%ot does not account to the co$$on intention but it is necessary to %ro8e the $eeting u% of $inds %rior to the actual co$$ission of cri$e.
) ,o%i @ath #hallar 8 +tate of K- 2**)N +CC 2* )3 / - a g e
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,KI!I@, -RI@CI-"'+ O COMMO@ I@T'@TIO@
In Ma,%oo% S,a, 5( Em)eror 4 the follo(ing %rinci%les (ere laid do(n by the court G •
Knder section 34 of I-C essence of liability is to be found in the e:istence of a co$$on intention ani$ating the accused leading to doing of a cri$inal act in
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furtherance of such intention. To in8oe the aid of section 34 successfully it $ust be sho(n that the cri$inal act co$%lained against (as done by one of the accused %ersons in furtherance of the co$$on intentionH if it is so then liability for the cri$e $ay be i$%osed on any one of
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the %ersons in the sa$e $anner as if the acts (ere done by hi$ alone. Co$$on intention (ithin the $eaning of section 34 i$%lies a %rearranged %lan and to con8ict the accused of an offence a%%lying the section it should be %ro8ed that the
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cri$inal acts (ere done %ursuant to the %rearranged %lan. It is difficult if not i$%ossible to %rocure direct e8idence to %ro8e the intention of an indi8idual in $ost cases it has to be inferred fro$ his act or conduct or other rele8ant
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circu$stances of the case Care $ust be taen not to confuse sa$e or si$ilar intention (ith co$$on intentionH the %artition (hich di8ides Etheir boundsF is often 8ery thinH ne8ertheless the distinction is real and substantial and if o8erlooed (ill result in $iscarriage of
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justice. The inference of co$$on intention (ithin the $eaning of the ter$ under section 34 should ne8er be reached unless it is a necessary inference deductable fro$ the circu$stances of the case.
2 Mahboob +hah 8 '$%eror )&45N AIR ))J 6-C7 )5 / - a g e
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COMMO@ I@T'@TIO@ +?OK"! ' -RIOR TO T?' OCCKRR'@C'
In Pan1$ran# 5( State o/ H&1era%a1 6 the +u%re$e Court obser8ed that it is (ell established fact that a co$$on intention %resu%%oses %rior concert. It reuires %rearranged %lan because before a %erson can be 8icariously held liable for the cri$inal act of another the act $ust ha8e been done in furtherance of the co$$on intention of the$ all. The inference of co$$on intention should ne8er be reached unless it is a necessary inference deducible fro$ the circu$stance of the case. The incri$inating facts $ust be inco$%atible (ith the innocence of the accused and inca%able of e:%lanation on any other reasonable hy%othesis.
I @T'@TIO@ O@ T?' +-OT
In certain cases an intention can be for$ed on the s%ot. It is not al(ays necessary that all the accused ha8e $editated the cri$e (ell in ad8ance. In certain cases the intention can be for$ed on the s%ot. In a fight all the accused $ay at a %oint decide to tae out their re8ol8ers and shoot the %eo%le of the other %arty in order to ill the$. ?ere the decision of illing the %eo%le of the other %arty (as taen on the s%ot. The issue of liability of different $e$bers of a grou% of %eo%le di8ided into $utually antagonistic or hostile grou%s es%ecially (hen there is a free fight bet(een the$ is one of the $ost difficult as%ects of joint liability. In Bal%ir Sin#, 5( State o/ P$nja% 7 a si$ilar uestion (as raised (herein four %ersons each belonging to t(o different grou%s attaced each other and in the result one %erson died. oth the trial court and the ?igh Court had held that there (as a free fight and e8ery assailant (as accountable for his o(n acts co$$itted. ?o(e8er the +u%re$e Court held that in a free
3 -andurang 8 +tate of ?yderabad )&55N AIR 2) 6+C7
4 albir +ingh 8 +tate of -unjab )&55N AIR )&5 6+C7 ) / - a g e
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fight there (as a $o8e$ent of body of the 8icti$s and assailants and in such a situation it (ill be difficult to s%ecifically ascribe to one accused the intention to cause injuries sufficient to cause death. I @ KRT?'RA@C' O COMMO@ I @T'@TIO@
The %rinci%le of joint liability arises out of co$$on intention follo(ed by an act in furtherance of such co$$on intention. This has been clearly stated in the case of Ma,%oo% S,a, 5( Em)eror (herein one Allah !ad (as shot dead by a bullet fro$ the gun used by one
of the accused (ho ca$e to rescue their cousin (ho had been attaced by Allah !ad and shouted for hel%. The t(o accused (ere ar$ed (ith a guns and each one of the$ ai$ed at t(o different indi8iduals shot fro$ the gun of =ali +hah the latter only recei8ed injuries fro$ a bullet shot by Mahboob +hah. Of the three accused =ali +hah (hose shot illed Allah !ad absconded and could not be brought on trial. The other t(o (ere tried and %rosecuted under section 3*2 read (ith section 34 I-C. The sessions judge con8icted hi$ and a(arded death %enalty. On a%%eal to the "ahore ?C the "ordshi%s held that the case fell (ell (ithin the a$bit of section 34 and as to their Eco$$on intentionF it (as said that Eco$$on intention to co$$it the cri$e (hich (as e8entually co$$itted by Mahboob +hah and =ali +hah ca$e into being (hen ,hula$ Qasi$ +hah shouted to his co$%anions to co$e to his rescue and both of the$ e$erged fro$ behind the bushes and fired fro$ their res%ecti8e guns.F Their "ordshi%s of the -ri8y Council ho(e8er disagreed (ith the 8ie( of the judges of the "ahore ?C. In their o%inion there (as no e8idence of the co$$on intention to the e8idence that the a%%ellant Ejust ha8e been acting in concert (ith =ali +hah %ursuance of a concerted %lan (hen he along (ith hi$ rushed to the hel% of ,hula$ Qasi$.F In their 8ie( the co$$on intention of both (as to rescue ,hula$ Qasi$ and both of the$ %iced u% different indi8iduals to deal (ith. '8idence is lacing to sho( that there (as any %re$ediation to bring about the $urder of Allah !ad. At the $ost they can be stated to ha8e a si$ilar intention but not a co$$on intention and one should not be confused (ith each other. ?ence the -ri8y Council set aside the con8iction and sentence of $urder as i$%osed by the ?igh Court.
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-ARTICI-ATIO@ -artici%ation is a necessary ele$ent or condition %recedent to finding of joint liability. The +u%re$e Court in the case of >antia, Rama&&a M$ni)all& 5( State o/ Bom%a& ? obser8ed that it is the essence of section 34 that the %erson $ust be %hysically %resent at the actual co$$ission of cri$e. ?e need not be %resent on the actual s%ot he can for instance can stand outside to (arn his co$%anions about any a%%roach of danger.
+'CTIO@ 35 +ection 35 of the I-C is in furtherance of the %receding section 34. It reads that +ec 35 @,en '$c, an act i' criminal %& rea'on o/ it' %ein# 1one wit, a criminal nowle1#e or intention .
=hene8er an act (hich is cri$inal only by reason of its being done (ith a cri$inal no(ledge or intention is done by se8eral %ersons each of such %ersons (ho joins in the act (ith such no(ledge or intention is liable for the act in the sa$e $anner as if the act (ere done by hi$ alone (ith that no(ledge or intention. If se8eral %ersons ha8ing the sa$e cri$inal intention or no(ledge jointly $urder each one (ould be liable for the offence as if he had done the act aloneH but if se8eral %ersons join in the act each (ith different intention or no(ledge fro$ the others each is liable according to his o(n intention or no(ledge.
Reference can be $ade to the case of A1am Ali Tal$1ar (here A and beat C (ho died. A had an intention to $urder C and ne( that his act (ould cause his death. on the other
5 +hreeantiah Ra$ayya Muni%alli 8 The +tate Of o$bay )&55 N AIR 2J0
Ada$ Ali Taludar 8 ing '$%eror )&20N AIR 324 6Cal7 )& / - a g e
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hand intended to cause grie8ous hurt and did not ne( that his act (ill cause C
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COMMON OBJECT
Co$$on objectG the (ord Object $eans %ur%ose or design to $ae it co$$on it $ust be shared by all. It $ight be for$ed at any stage by all or fe( $e$bers. It $ay be $odified altered or abandoned at any state. Co$$on object $ay be for$ed by e:%ress agree$ent after $utual consultation. The sharing of co$$on object (ould ho(e8er not necessarily reuire the $e$ber %resent and sharing the object to engage hi$self in doing an o8er act. Therefore this section is ina%%licable in a case of sudden $utual fight bet(een t(o %arties because of lac of co$$on object.
+'CTIO@ )4&
Section 37: 8 E5er& mem%er o/ $nlaw/$l a''em%l& #$ilt& o/ o//ence committe1 in )ro'ec$tion o/ common o%ject
If an offence is co$$itted by any $e$ber of an unla(ful asse$bly in %rosecution of the co$$on object of that asse$bly or such as the $e$bers or that asse$bly ne( to be liely to be co$$itted in %rosecution of that object e8ery %erson (ho at the ti$e of the co$$itting of that offence is a $e$ber of the sa$e asse$bly is guilty of that offence.
'++'@TIA" '"'M'@T+ To in8oe section )4& I-C the follo(ing ingredients $ust be %resent P •
There $ust be an unla(ful asse$bly. There $ust be at least fi8e %eo%le in such an
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asse$bly. There $ust be so$e co$$on object of such an unla(ful asse$bly. ?ere the (ord Eco$$onF $ust be distinguished fro$ Fsi$ilarFH it $eans Eco$$on to all and no(n 2) / - a g e
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to the rest of the$ and also shared by the$F. There $ust be a co$$ission of offence by anyone or $ore $e$bers of such unla(ful
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asse$bly. The co$$ission of such offence $ust be in %rosecution of the co$$on object shared
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by all and each of the $e$bers of such unla(ful asse$bly. The offence co$$itted in %rosecution of a co$$on object $ust be such that each one of the $e$bers of such unla(ful asse$bly ne( (as liely to be co$$itted.
In Miaji 5( State o/ !ttar Pra1e', it (as stated that +)4& I-C has t(o %arts. The liability of a $e$ber of an unla(ful asse$bly $ay arise for an offence co$$itted by any $e$ber of the asse$bly in t(o (ays. The first is (here the other $e$bers co$$it an offence (hich (as in fact the co$$on object of the asse$bly. The second is (here the co$$on object to co$$it an offence (as different fro$ the offence (hich (as actually co$$itted. or e:a$%le the accused B # and (ere alleged to ha8e entered into A
0 Mi9aji 8. +tate of Kttar -radesh 8 +tate of Kttar -radesh )&5&N AIR 502 6+C7
J ,ajanand 8 +tate of Kttar -radesh )&54N AIR &5 6+C7 22 / - a g e
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D"FFERENCE BET@EEN S(67 S(37:
There is a close rese$blance bet(een co$$on intention and co$$on object though both of the$ belong to different categories of the office in cri$inal la( i.e. 6 + 34 and + )4& 7 res%ecti8ely .The %rinci%al ele$ent in + 34 of the Indian -enal Code 6I-C7 is the co$$on intention to co$$it a cri$e. In furtherance of the co$$on intention se8eral acts $ay be done by se8eral %ersons resulting in the co$$ission of that cri$e. In such a situation s. 34 %ro8ides that each one of the$ (ould be liable for that cri$e in the sa$e $anner as if all the acts resulting in that cri$e had been done by hi$ alone. There is no uestion of co$$on intention in s.)4& of the Indian -enal Code. An offence $ay be co$$itted by a $e$ber of an unla(ful asse$bly and the other $e$bers (ill be liable for that offence although there (as no co$$on intention bet(een that %erson and the other $e$bers of the unla(ful asse$bly to co$$it that offence %ro8ided the conditions laid do(n in the section are fulfilled. Thus if the offence co$$itted by that %erson is in %rosecution of the co$$on object of the unla(ful asse$bly or such as the $e$bers of that asse$bly ne( to be liely to be co$$itted in %rosecution of the co$$on object e8ery $e$ber of the unla(ful asse$bly (ould be guilty of that offence although there $ay ha8e been no co$$on intention and no %artici%ation by the other $e$bers in the actual co$$ission of that offence. There is a difference bet(een co$$on o%ject an1 intention . •
Although the object $ay be co$$on the intentions of the se8eral $e$bers of the unla(ful asse$bly $ay differ and indeed $ay be si$ilar only in one res%ect na$ely that they are all unla(ful (hile the ele$ent of %artici%ation in action (hich is the leading feature of s. 34 is re%laced in s. )4& by $e$bershi% of the asse$bly at the
•
ti$e of the co$$itting of the offence. Co$$on intention in +ection 34 is undefined and therefore unli$ited in its o%eration (hile co$$on object in +ection )4& cannot go beyond the fi8e objects
•
s%ecifically indicated in +ection )4) of the I-C The crucial difference bet(een co$$on intention and co$$on object is that (hile
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co$$on intention reuires %rior $eeting of $ind and unity of intention co$$on object $ay be for$ed (ithout these ingredients.
Di//erence Between S 67 S37:
$ase N a t u re o 5 O 6 e n s e
Section3" This section is not a
Section !"' This section is a substanti8e
substanti8e office it is only a
offense it also read (ith
role of e8idence. it al(ays
other sections. -unish$ent
read (ith other substanti8e
can be i$%osed solely u%on
offices. -unish$ent cannot
this section .=here as
be i$%osed solely u%on this
%rosecution file a charge
section. or e:a$%le if a
sheet uDs
%erson con8icted uDs 3*2 rD( 34 of I-C can legally be con8icted uDs 3*2 rD( 34. Co$$on intention the
Co$$on ObjectG the
%rinci%le ingredient of this
%rinci%le ele$ent of this
section is Co$$on intention
section is Co$$on Object
any act (hich co$$itted in
any act (hich co$$itted in
furtherance of co$$on
%rosecution of co$$on
intention attract this section Co$$on intention (ithin the
object (ill attract this section Co$$on object is defined
7an8e o5
$eaning of section 34 is
and is li$ited to the fi8e
Princi0le
undefined and unli$ited.
unla(ful objects stated in
Princi0le element
element 9y 0 e o 5 O 6 e n s e
Necessity
section )4) of I-C. Co$$on Intention reuires
Co$$on object reuire
under this section $ay be of
under this section $ust be
A@B TB-'.
one of the object $entioned
-rior $eeting of $ind is
uDs )4) of I-C. -rior $eeting of $ind is not
necessary before (rongful
necessary under this section.
act is done under this section.
Mere $e$bershi% of an unla(ful asse$bly at the 25 / - a g e
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ti$e of co$$itting the
Liability
Number o5 Person
Partici0ation in Crime
It is a joint liability. A joint
offense is sufficient. It is a constructi8e liability
liability of a %erson is
and 8icarious liability. all the
deter$ined according to the
$e$bers of that asse$bly
$anner in (hich he beco$es
(ill be 8icariously liable for
associated (ith co$$ission
that offence e8en one or
of the cri$e.
$ore but not all co$$itted
Mini$u$ t(o %eo%le reuire
the said office. Mini$u$ fi8e %eo%le reuire
attracting this section. Acti8e %artici%ation in
attracting this section. Merely $e$bershi% of the
co$$ission of cri$e is
unla(ful asse$bly at the
necessary.
ti$e of co$$issioning of cri$e (ould be sufficient for this section a%%lication acti8e %artici%ation is not necessary.
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B"BL"OGRAPHY
• •
• •
• •
• •
-+A -illai Cri$inal "a( )2th 'dition "e:is @e:is ,aur ! A Te:tboo on Indian -enal Code 2*)3 ourth 'dition Kni8ersal "a( -ublishing Co. Mishra +@ Indian -enal Code 2**J )th 'dition Central "a( -ublications ,aur ! Cri$inal "a( G Cases and Materials 2*)3 th 'dition "e:is @e:is utter(orths =adh(a isho%
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