Introduction Joint liability in criminal law (also called group liability, vicarious liability, constructive liability, and complicity in crime) is a concept expatiated upon in several sections in the Indian Penal Code (Act 45 of 1860 ). This project deals with joint liability in India under all these sections, and attempts a comprehensive comprehensive analysis of its invocation and attraction by the law courts under varying circumstances. Where parties go with a common purpose to execute a common object, each and everyone becomes responsible responsible for the acts of each and every other in execution and furtherance of the common purpose; as the purpose is common, so must be the responsibility. The meaning of joint liability can best be explained by saying that when a crime is done by several people together, who intended to commit that crime, they are all liable as though they had committed the crime in their individual capacities. The basic justification for making provision of group liability in criminal law is two fold: Firstly, offences committed in groups give encouragements to the accomplices and, secondly, in offence committed in group the job of the prosecution becomes difficult to ascertain specific role played by each member of the group. Other sections also invoke the principal of group liability (e.g. S. 120-A – criminal criminal conspiracy and waging war against the State) and it is commonly discussed and interpreted in law courts as it is an integral question 1 in a large proportion of criminal cases. In Maksud Saiyed vs State of Gujarat , in which a former chairman and managing director of Dena Bank was accused of conspiracy, giving false evidence, providing false statements and a number of other criminal offences when the bank floated a public issue. The charges were made by a person who had taken a loan from the bank and who was summoned by the debt recovery tribunal. He found some mistakes in the prospectus and filed the complaint before the magistrate. The judge directed the police to investigate the allegations. The Supreme Supreme Court said that a bona fide mis-description mis-description of the pending case which did not materially influenced i nfluenced the decision of the investors did 2 not give rise to a cause of action for filing a complaint The Indian Penal Code of 1860 deals with joint liability in the following sections: S. 34, S. 35, S. 37, S.38, S. 149, S. 120-A, S. 121-A, S. 396 and S. 460. 1
CRIMINAL APPEAL NO. 1248 OF 2007 www.business-standard.com/article/opinion/m-j-antony-fuzzy-logic-of-vicarious-liability-108031201040_1.html , 16/09/2013 2
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Section 34 “Acts done by several persons in furtherance of common intention- when a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if done by him alone.” When IPC was enacted in 1860, section 34 at that time didn‟t included words „in furtherance of common intention‟, then an amendment was made in year 1870 to amend Indian Penal Code and then these words were included in the section 34. The amended section 34 of IPC simply says that all those persons who have committed a crime with a common intention and they have acted while keeping in mind the common intention, then everyone should be liable for the acts o f another done in common intention as if the act is done by the person alone. It happens that different persons perform different acts in the commission of the act or non commission of the act, even though when section 34 applies, all the persons in group are jointly liable for the acts of another. The concept of Joint Liability was evolved in the case of Reg of Reg v. Cruise, Cruise , in this case police had gone to arrest A at his home. B, C and D were also present at that time. When all the three persons saw police coming, they came out of the house and gave a blow on the police and they drove them away. The court held that all the three are liable for the blow even if the blow was given by only one person. The ingredients of Section 34 are:
There should be criminal act- Criminal Act means that either committing the act or omitting which is an offence under IPC.
That criminal act is done by several persons- For the Section to apply, it is necessary that the act is done by more than one person as if the act is done by only one person person then this section does not not applies. That criminal act is done in the furtherance of common intention of all- it means that the persons should have decided in advance about the commission of the act and every one of them have acted keeping in mind that common intention. There should be participation in some way or other in the commission of the act- the persons cannot be held liable if they have decided what to do and then they have not done that thing, every person who is a part of the group should do something so as to participate in the commission of the act. 2
Section 149 Section 149 of Indian Penal Code deals with offence in which every member of an unlawful assembly is guilty of offence committed in prosecution of common object. The sections says that-“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.” This section simply means that if any member of an unlawful assembly commits an offence in prosecution of common object for which the assembly was formed, if the members of the assembly knew that such act is likely to be committed for achieving that common object, then every person who is a member of that unlawful assembly will be guilty of that offence. For "common object", it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on spur of the moment; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with 3 the common object of the unlawful assembly of which the accused were members . The punishment under section 149 is same as that of the offence which is committed in the unlawful assembly. If the prosecution wants to prove a person under section 149 of IPC, then it has to prove the presence of the person at the site and his participation in the unlawful assembly. This section creates a constructive liability or vicarious liability on the members of the unlawful assembly for the unlawful acts committed in pursuance of the common object. Once the case of a person falls in this section, the question that he did nothing with his own hands is immaterial. He cannot take the defence that he didn‟t commit that offence, every person in an unlawful assembly knows the natural and probable consequences of the object to be achieved by the unlawful assembly. Mere part of an unlawful assembly will make all the persons liable for the unlawful act of other members. In this section, the liability of the members other than the principle offender is based
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http://www.legalblog.in/2011/09/common-object-under-s-149-of-indian.html#sthash.X4pVIKdA.dpuf, 16/09/13
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on the fact that whether other members knew that the offence that was committed 4 was likely to be caused in pursuance of the common object .
Section 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. S. 34 deals with an act pursuant to the formation of a common intention. S. 35 creates what is known as „like intention.‟ It continues in the vein that any person who joins in a criminal act with criminal knowledge and intention will be liable for the action as though committed by him alone. But it qualifies this statement by adding a required rider that says if such persons involved were to clearly differ in their intentions and the extent of their knowledge thereto, despite the fact that the criminal act were the same, they would be liable to different extents i.e. only to the extent of their respective intention or knowledge.
Section 37 S. 37: Cooperation by doing one of several acts constituting an offence. When an offence is committed by means of several acts, whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. The difference between S. 34 and S. 37 is that S. 34 calls for common intention and a unity of criminal behavior arising thence which causes the criminal act to be committed – and then punishes each participant as though the act were done by him alone. S. 37, however, is based on intentional cooperation in an offence committed by means of several acts, and then goes on to punish such cooperation in any of the acts (committed singly or jointly) as if it constituted the offence itself. Importantly, intentional cooperation could clearly differ from common intention.
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http://www.legalservicesindia.com/article/print.php?art_id=1343, 17/09/13
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The former must include specific action contributing to the offence and done with the conscious intent (whether displayed or not) to commit that offence.
Section 38 S. 38: Persons concerned in a criminal act may be guilty of different offences. 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. S. 38 has been held to be the converse of S. 34, considering that S. 34 deals with acts that involve common intention whereas S. 38 has to do with acts that could involve differing intentions. It provides for different punishments for different offences and thus makes space for the possibility that the same criminal act could be done jointly but by people who have different intentions thereto, and hence must be held liable for different offences. In the case of Nitya Sen v. State of West Bengal of the three accused two assaulted the deceased with a particular weapon leading to his death, whereas the third did not. It was held that while the first two were guilty of murder, the third was only guilty of culpable homicide u/s 304 Part II as he had no intention to murder the deceased, despite possessing the knowledge 5 that the assault by the other two . In M/s Thermax Ltd vs K M Johny, the Supreme Court stated that "though civil law recognizes the principle of „vicarious liability‟ 6 of directors of companies, the concept is not acknowledged in criminal law .
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http://www.myarticle.com/Law/Criminal-Law/joint-liability-and-group-liability-under-indian-penal-code-1860-acritical-analysis.html, 17/09/13 6 http://www.citehr.com/367452-directors-not-vicariously-liable-crime-company-supreme.html#ixzz2i9QZ5ehL, 16/09/13
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S. 149 & S.114 : A Comparison with S. 34 S. 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. S. 149 - 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 7 assembly, is guilty of that offence . Thus, 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. The prosecution case remains unaffected even if the accused are at first wrongly charged u/s 149 and later S.34 is correctly substituted in its stead. However, it is very important here to discuss the main difference between the two sections: a comparison between the „common intention‟ of S. 34 and the „common object‟ of S. 149. The crucial difference here lies in the fact that common intention connotes a community of interest and a meeting of minds, so to speak, with regard to the outcome of the criminal act. In an unlawful assembly, the gathered people may have a common object, but need not have a common intention. 8
The major two distinctions between the two are as :(i)
Both sections 149 and 34 deal with a combination of persons who become liable to be punished as sharers in the commission of offences. The nonapplicability of section is, therefore, no bar in convicting the accused under
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http://www.lawyersclubindia.com/articles/Differences-between-Section-34-and-Section-149-IPC4591.asp#.Uq8Rq1Awqe0, 18/09/13 8 http://www.dabangvakil.com/indianpenalcode/section34ipcdhara.html, 18/09/13
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(ii)
substantive section read with section 34 if the evidence discloses commission of an offence in furtherance of the common intention of them all; Nethala Pothuraju v. State of Andhra Pradesh9 In order to convict a person vicariously liable under section 34 or section 149 it is not necessary to prove that each and everyone of them had indulged in overts acts; Ram Blias Singh v. State of Bihar 10
For invoking S. 34, it is sufficient if there are two or more persons involved; however in S. 149, there have to be a minimum of five persons and more to attract coverage of the provision.
As aforementioned, S. 34 only qualifies the principle of joint liability and does not create a separate offence in itself. In contrast, S. 149 specifically creates the offence of membership of an unlawful assembly and is classified under Chapter VIII as an Offence against Public Tranquillity. It follows that for S. 34 to be attracted, „participation‟ in the criminal act is required whereas in the case of S. 149, mere „membership‟ of the unlawful assembly should suffice.. Whereas under Section 114 the abettor must be present at the time though as in Section 34 he need not have committed the act himself. It refers to cases where a person by abetment, previous to the commission of the act, renders himself liable as an abettor, is present when the act is committed but takes no active part in the doing of it. S.114 relates to Sections 107, 109, 115, 116. Section 34 does not provide a concept of separate offence whereby Section 114 provides a statutory 11 separate offence .
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, (1991) Cr LJ 3133 (SC) (1989) Cr LJ 1782: AIR 1989 SC 1593 11 http://www.shareyouressays.com/119752/difference-between-section-34-and-section-114-of-indian-penalcode-1860, 17.09/13 10
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Vicarious Liability Normally the liability for the wrong done lies on the person who has committed it. But to this general rule there are exceptions. The exceptions are provided by the doctrine of vicarious liability , where one person is made liable for the wrongful act of another . In Black‟s Law Dictionary, the term „vicarious liability‟ is defined thus: “The imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. Indirect or imputed legal responsibility for the acts of another, for example, the liability of an employee for the acts of an employee, or, a principal for the torts and contracts of 12 an agent.” Criminal Law is never vicarious except in a few extreme cases of statutory liability (n e.g. where sale is made by servant of a licensed vendor of arms and ammunition to an unauthorized person, the licensee is liable to punishment under the Indian Arms Act) , public nuisance or neglect of duty (e.g. an engineer was held guilty of manslaughter when he entrusted the management of steam engine to an ignorant boy who killed a man for want of skill to handle the engine : (Vide Lowe, 3 C & K 123). It is, however, only in civil law that vicarious liability is recognized in two cases. They are as under : 1. Master and Servant- The liability of a master for the torts of his servant is an example of vicarious liability i.e. where A as master is liable for the tort to B committed against C though A is no party to the tort. B himself is of course usually liable.
A servant is one whose work is under the control of another. Unless the wrong done falls within the course of the servant‟s employment , the master is not lia ble. Thus , a master is liable if the wrong be the natural consequence of something done by the servant in execution of the specific orders of the master. The master is also liable for the servant‟s want of care in carrying out the work entrusted to him if the servant exceeds the authority given to him in mistaken notion of his duty provided the servant purported to act on behalf of his master. The master is also liable for 12
http://freelegalconsultancy.blogspot.in/2012/05/it-is-clear-that-in-case-of-vicarious.html, 18/09/13
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willful wrongs done by the servant on behalf of the master because the act done may still be in the course of employment even if it is was forbidden by the master. Thus , a master is liable when the driver employed by him had raced with other omnibuses in spite of the instructions from the master not to do so, because the driver intended to benefit his master to get more passengers. The master is similarly liable for the mistake of the servant as a misguided enthusiast. 2. Representatives of a dead man- The Common law maxim was octio personalis moritur cum persona , i.e., a personal action dies with the person , or death extinguishes liability in tort. This rule of law has to a great extent been 13 abrogated by statutory provisions , as also at Common Law .
Common Law Exceptions There are three exceptions to the common law rule that no person is criminally liable for the act of another unless he has authorized or assented to do it. 1. Libel- A master is liable for libel punished by his servant. This rule was designed chiefly to punish the newspaper proprietors. Later on Libel Act was passed in 1843. Section 7 of this act provides that the proprietor could plead the absence of knowledge or negligence in his defense. It means he can plead that there has been no lack of due care on his part and that the libel has been published without his authority. 2. Public Nuisance- A master is vicariously liable for public nuisance caused by his servants. The master cannot defend himself by showing that he expressly forbade the Act. A duty is imposed upon the owners of the land to manage their property in such a manner so as not to injure the rights of other men of public. A breach of this 14 duty is punishable criminally. In R. v. Stephens , the owner of a quarry was managing it through a manager. The manager, servants and other workmen were instruct not to dump rubbish in the river, where it would cause harm to the public generally. In spite of these instructions , they dumped the rubbish in the river for which the 13
Justice Tandon, Rajesh; Indian Penal Code, Allahabad Law Agency, 2005, p16 (1866) L.R. 1 Q.B. 702.
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owner was indicted and found guilty. It was observed that the object of prosecution is not to punish the defendant but to prevent the nuisance from being continued. The Indian Law on public nuisance is contained in section 268 of the Indian Penal Code. In India any one who does any act or is guilty of an illegal omission which causes any common injury or danger or annoyance to the public or to the people in general is liable for public nuisance. The common law cases relating to public nuisance do not serve as an authority to the construction of the provision of the Indian Penal Code. 3. Contempt of Court- It is the third exception to the common law rule 15 against vicarious liability . The law relating to contempt of court has now been modified by Administration of Justice Act, 1960. Under Section 11 of this Act the accused may plead that neither he had knowledge nor reason to suspect that the proceeding which had been published were pending before the court.
Statutory Exceptions Like strict responsibility , vicarious liability may also be created by statute. Vicarious liability may, however, be inferred from the language of the statute. In 16 Allen v. Whitehead , the defendant, an occupier and licensee of the refreshment house employed a manager for running the refreshment house. He used to visit it only once or twice a week. He had given express instructions to the manager that no prostitutes were to be allowed to congregate on the premise of the house. The manager in spite of his instructions to the contrary , allowed some women , whom he knew to be prostitutes, to congregate to the premises. The defendant, even though had no personal knowledge of it, was held liable for knowing, suffering prostitutes to meet and remain in the house. 17
In Wilson v. Murphy , a football pool promoter employed about a large number of collectors and instructed them it was illegal to collect money until after the matches had been played and also that the credit be always be given until this 15
R. v. Evening Standard , (19540 1 Q.B. 578. (1930) 1 K.B. 211. 17 (1937) 1 All E.R. 315 16
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event. One of the collector accepted the money at the investment. The pool promoter was not held guilty of offence. This case had been distinguished from Allen v. Whitehead on the point that in the latter case licensee had put into position of responsibility ( a man who was called upon to exercise on discretion. But we see that it is not a tenable distinction. The manager in Allen v. Whitehead was given no discretion , but was expressly forbidden from permitting there resorting of the prostitutes. In both the cases the servants were forbidden to break the law. It has further been observed that the licensee in Allen v. Whitehead had transferred to his manager a discretion which he ought to have exercised. It is hard to understand under what principle the discretion was held to be non-delegatable unless on this principle that the master having a public license was bound to give his personal attention to the premises. This appears to be true ground of reconciliation between 18 two cases Indian Law- The offence of vicarious liability has been created in India through various acts. For example The Arms Act, 1959 and The Opium Act, 1878. Under the Indian Penal Code the owners and the occupiers of the land are vicariously liable under section 154 and 155 for unlawful assembly or riot taking place on their land, although he may be ignorant of the act of his agent or manager. Section 40 of the Criminal Procedure Code, 1973 requires the owners and the occupiers of land to give information about the commission of an offence or apprehension of commission thereof . Under section 154 of the Indian Penal Code the liability of the owner or occupier does not depend upon his knowledge of the commission of riot etc.
Section 155 is a general section and is directed against persons who encourages or connive at a riot , and who consider it to their advantage. Section 156 makes the owner or occupier of land , for whose benefit the riot is committed , liable . The agent or manager of such person shall be liable if he having reasons to believe that such riot was likely to be committed or that the unlawful assembly by which such riot was committed was likely to be held. The application of the doctrine of vicarious liability in crimes seems to have been actuated by a necessity rather than desirability. The justification of the doctrine is based on public policy that a person may properly be punished for the crime of his 18
Williams, G.; Criminal law , 1953, p284
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subordinate servants , or agents, because the threat of such punishments may induce him and others to exercise supervision over the subordinates . The dislike for the doctrine has not only been expressed by criminal lawyers but the judges 19 too. Lord Goddard , C.J. In Gardner v. Akeroyd , called vicarious liability as „odius‟ but observed that “it is a necessary doctrine for the proper enforcement of 20 modern legislation , but it is not one to be extended .
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(1925) 2 Q.B. 743 at 751 Prof. Mishra, S.N.; Indian Penal Code, Central Law Publication, 19th Edition, 2013, p50
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USE OF DOCTRINE OF VICARIOUS LIABILITY IN CRIMINAL LITIGATION But 1989 has seen a phenomenal change for the corporate world in respect of the concept of vicariously liability. Provisions of Section 138 under the Negotiable Instruments Act has been incorporated and the bouncing of cheque was made a criminal offence,(which was earlier a civil offence in which recovery of money in cheque bouncing cases was a lengthy process) with the intent of making the cheque (which is a Negotiable Instruments) truly acceptable in the commercial world. Needless to add that the other negotiable instruments does not possess the same status which has been conferred to cheque under section 138 of the Negotiable Instruments Act. Not only this but the concept of vicarious liability has also been incorporated by Section 141 of the Negotiable Instruments Act , 1881 making the directors, manager , secretary and other officer of the company liable if the offence is attributable to any neglect on their part, thereby incorporating the concept of vicarious liability. The fall out of the above is that it has opened a flood gate of Criminal litigations under Section 138 & 141 of the Negotiable Instruments Act, 1881 in which directors are also made parties (Accused). The issue has also been settled by the Hon‟ble Supreme Court of India in line of Judgments which states that Directors are liable u/s 138 & 141 of the Negotiable Instruments Act, 1881. But, since the offence is bailable i.e., one can seek bail as a matter of Right, much heat is not felt by the Corporate World, although the rigors of Criminal Procedural law has to be undergone. In such cases normally, the relief obtainable from the various High Courts are exemption from Personnel appearance by the directors before the Ld Trial Court. The impact is because of the exemption from personal appearance, the rigors of Criminal Procedural Law has been diluted to the large extent. Inspite of the above remedies available with them, the corporates in many cases, try to settle the score, so as to save their directors and top officials from the embarrassment of passing through the rigorous criminal recourse. Settlement of the cases in this manner would not have been possible in the absence of the criminal procedure. Such is the karishma of Criminal Procedure. 13
Interestingly, with the passage of time another situation has cropped up and Criminal Complaint u/s 406, 409, 420 of the Indian Penal Code and other allied sections are also being filed with the Courts against the directors and other senior officials taking the recourse of vicarious liability concept , in which Directors are being implicated as an accused. The courts are also taking cognizance of these 21 complaints against the Directors .
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www.justicusindia.blogspot.in/2010/06/directors-vicarious-criminal-liability.html ,17/09/13
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Analysis of the Three Ingredients of Joint Liability 1. Criminal Act done by Several Persons: Here S. 34 is to be read in the light of the preceding S. 33 (The Word “Act” denotes as well a series of acts as a single act ). It follows that the words „when a criminal act is done by several persons‟ in S. 34, may be construed to mean „when criminal acts are done by several persons.‟
The scope of S. 34 was first clearly delineated in Barendra Kumar Ghosh v. King Emperor . In this case, the postmaster of Shankaritola was sitting in the backroom of the post office counting his money when several persons appeared at the door and demanded the money. Upon his refusal to part with it, they fired pistols at him and ran away. He died almost immediately – however, the accused was the only one who was chased down and caught holding a pistol. In his defence he stated he was only standing guard outside the post office because he was compelled to do so by the other accused, and hence he had no intention to kill the postmaster. This defence was quashed and he was convicted for murder u/s 302 r/w S. 34 of the IPC. 2. Common Intention and the Scope thereof: All the persons concerned with the criminal act must possess a general intention in common as to the crime. In Mahb oob Shah v. Emperor it was enunciated that a furtherance of the common design is a condition precedent to convicting each one of the persons who take part in the commission of the crime, and the mere fact that several persons took part in a crime in the absence of acommon intention is not sufficient to convict them of that crime.
Again, proof of such common intention must needs be gleaned from the facts and circumstances of the individual case. As Madhavan Nair, J., observed: “The inference of common intention within the meaning of the term in S. 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case,” and it is clear that such proof is rarely available directly. Common intention differs from „same‟ or „similar‟ intention. S. 3 4 can only be invoked in cases of common intention – and importantly, liability, conviction and sentence will all differ depending on the nature of intention. To constitute common intention it is necessary that the intention of each person be known to all the others and be shared by them, whereas this is not the case in „same‟ or „similar‟ intention. Furthermore, in the absence of conclusive proof of common intention, individual offenders will be liable only for individual acts. The benefit of the doubt is always 15
on the side of the accused. It is interesting to note that the Supreme Court of India has held that “mere presence together is not sufficient to hold that [two or more people] shared a common intention.” It is imperative to note here that S. 34 is only a rule of evidence and does not create a substantive criminal offence. In another case the Supreme Court observed: “[S. 34 of the Indian Penal Code] does not create a distinct offence; it only lays down the principle of joint criminal liability. … if two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guilty of murder.” The case of Balaur Singh v. State of Punjab threw into sharp relief a difficulty in imposing the rules of joint liability as far as mutual hostility and free fighting are concerned. In this case, two antagonistic groups suddenly happened to enter into a fight with each other. Four persons (two from each group) were involved in this free fight. One of them was grievously injured and six days after the fight, he died. There were two problems before the courts in this case: firstly, to assess and account for the specific role of each of the assaulting parties, and secondly, to determine whether common intention could be proved at all in this case. It was finally held that this being a free fight, each individual was accountable for the extent of damage he had himself caused. This was to be determined by analysing the kind of weaponry employed by the person and the nature of the injuries inflicted by him upon the others. However, in the context of the doctrine of common intention with regard to the death of that one particular individual, it was observed that in a free fight the victims themselves are either already participants or expected/probable participants in the cross assault on each other. Hence it would be close to impossible to specifically ascribe to the accused an intention to cause injuries that would eventually result in death of that particular individual. 3. Participation in the Criminal Act: All those charged with the criminal offence must have necessarily participated in it if the principle of joint criminal liability is to be brought into operation. The Supreme Court originally held that “… it is the essence of [S. 34] that the person must have been physically present at the actual commission of the crime. He need not be present in the actual room… but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or the other at the time the crime is actually committed.” Thus quite clearly the ambit of „participation‟ in this case was to include actual presence plus prior abetment of any sort. However, in a later case the Supreme Court itself expanded this ambit and clarified that participation in all cases need not be indicated or proven only by physical presence. Wherever 16
offences involved physical violence, for example, it is obvious that physical presence of the accused would be an essential fact. However, where non-physical violence was called into question, for example in cheating and misappropriation, it would be completely unreasonable for physical presence to be a prerequisite in establishing joint liability. But when once participation is proved in cases of physical violence, the accused persons will be jointly liable for the criminal acts even when the hand that technically administered the poison or delivered the fatal blow cannot be determined.
Over Acts And Common Intention The expression “common Intention” has been variously explained, thus, that it means, 1) A bare desire to commit a criminal act without any contemplation of the consequences, 2) The mens rea necessary to constitute the very offence that has been committed 3) The intention to commit some criminal act and not necessarily the offence which is actually committed, and that 4) What common intention connotes depends upon the circumstances of ech case and , therefore , the expression cannot be given a constant meaning. It has also been observed that views (2) and (3) above are each partly correct and that a proper combination of those views together with the provisions of 22 S.35 of the Penal Code would solve every problem. 23
In Krishnan v. State of Kerala , the Supreme Court in no uncertain terms clarified that “… establishment of an overt act is not a requirement of law to allow S. 34 to operate inasmuch as this section gets attracted when „a criminal act is done by several persons in furtherance of a common intention of all… Court‟s mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of the sharing of common intention: res ipsa loquitur .” In this case, the deceased was killed by his brother and nephew over a property dispute. The brother was proved to have inflicted repeated knife injuries on the deceased leading to his death. It was reported that the nephew inflicted a few head injuries before his knife was snatched from him. But it could not be 22
Prof. Pillai, Chandrasekharan K.N.; Essays On The Indian Penal Code , Universal Law Publishing, 2005, p196 AIR 1997 SC 383
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decisively proved that he (the nephew) had inflicted such injuries as to cause death. The question before the Court was that in the absence of any overt act pointing to his guilt, could the nephew be convicted u/s 302 r/w S. 34? As aforementioned, it was held that both the brother and the nephew shared the common intention of killing the deceased and the act done was in furtherance thereof – hence S. 34 was conclusively attracted and the nephew was jointly liable for the death of his uncle. Common intention can also be proved via circumstantial evidence i.e. no direct evidence is required to prove it – the conduct of the parties involved and the attendant circumstances, if when analysed provide sufficient reason to infer common intention, are enough to attract the doctrine of joint liability. The conduct of parties can be a tell-tale factor even when intention coheres on the spur of the moment and is not prearranged or premeditated. It is oft-quoted in this regard: “The incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.” Direct evidence is sometimes considered unreliable by the courts because it is generally provided by approvers or accomplices themselves, and there are rarely material particulars 24 to corroborate such allegations of community of interest
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See Supra 4
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RECENT JUDGMENTS In the case of Avnish Bajaj v. State , decided by the Delhi High Court in May 2008. The relevant question that arose in Avnish Bajaj was whether the Managing Director of a company could be held liable for the fact that pornographic material was displayed on a website maintained by the company. It was held that the Managing Director could be proceeded against under Section 85 of the Information Technology Act (IT Act). Section 85(2) of the IT Act clearly states that “where a contravention… has been committed by a company, and it has been proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of any director… such director shall also be deemed guilty of the contravention and shall be liable to be proceeded against and punished 25 accordingly.” 26 In M/s. Thermax Ltd. & Ors. Vs. K.M. Johny & Ors. , Though civil law recognizes the principle of „vicarious liability‟ of directors of companies, the concept is not acknowledged in criminal law. The company was accused of criminal offences and the directors were also named in the complaint case moved by a contracting party due to disputes over the termination of the agreement. The Bombay high court allowed the prosecution to proceed. On appeal, the Supreme Court quashed the complaint and set aside the high court order. The Supreme Court stated that there was no specific allegation against the members of the board of directors or senior executives but they have been roped in for being in the management of the company. The offence of cheating and misappropriation of property could be filed only against the company and not against the persons in such circumstances, the court said. Provisions of the Negotiable Instruments Act and the Industrial Disputes Act cannot be imported into the offences under the 27 Indian Penal Code, the judgment explained.
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In Amerika Rai & Ors. v. State of Bihar , this Court opined that for a member of unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their common object. The law of vicarious liability under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly, but with an active mind, to achieve the 25
http://indiacorplaw.blogspot.in/2008/08/when-can-directors-be-held-responsible.html,19/09/13 CRIMINAL APPEAL NO. 1868 OF 2011 27 http://taxguru.in/corporate-law/directors-not-vicariously-liable-for-crime-of-company-supremecourt.html,19/09/13 28 (2011) 4 SCC 677 26
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common object makes such a person vicariously liable for the acts of the unlawful 29 assembly. In recent Citibank Fraud Case in which the jury stands divided on whether the top management of Citibank,, could be held liable for the fraud committed by its employee and prime accused Shivraj Puri. As according to CA Sundaram, however, felt that Citibank's top management should not have a reason for worry. "In my view, there is a difference in criminal and civil liability. In criminal liability, there is no room for them to be held liable unless they are an actual party to the fraud. There is no room for vicarious liability. They can be held responsible only if a crime is made out against them and they have participated in the crime 30 and are personally involved." In Conclusion, it may be noticed that the decisions in Everest Advertising Pvt. Ltd. v. State (Govt. of NCT of Delhi and Ors.) and S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, both Supreme Court judgments of 2007, have imposed liability upon directors only under the express provisions of Sections 138 and 141 of the Negotiable Instruments Act, thus lending implicit support to the decision in Maksud Saiyed. Furthermore, Maksud Saiyed has been affirmed in the cases of Ashok Sikka v. State and R.C. Gupta and Ors. v. State and Anr. (two 2008 judgments where the Delhi High Court expressly held that there mere statement that certain persons were directors of a company would not be enough to attach liability), and the 2008 Supreme Court case of S.K. Alagh v. State of UP and Ors. The current position of law, therefore, does not admit of much doubt.
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http://www.legalblog.in/2011/09/common-object-under-s-149-of-indian.html#sthash.w2f5iN7i.dpuf, 19/09/13 http://articles.timesofindia.indiatimes.com/2011-01-06/india-business/28354731_1_top-management-shivrajpuri-citibank-s-gurgaon, 19/09/13 30
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