INTRODUCTION
The fundamental objective of stating the vicarious liability provisions in the Indian Penal Code (IPC) was to spare the prosecution of the cumbersome task of proving mens rea and actus reus of each person in cases where crime is done by several persons. Generally, a person who commits a crime is responsible for his acts and gets the respective punishment according to the code. But the IPC has made exceptions via sections 34[1] and 149[2], wherein criminal liability is imposed upon not only an individual but also upon those associated with such a person. The IPC lays down the criteria on which joint liability and group liability are invoked and are also differentiated upon. This piece intends to focus on the fine line these liabilities are based upon and related ancillary developments that are associated with them.
FUNDAMENTALS OF JOINT LIABILITY AND GROUP LIABILITY
Joint Liability-
The requisites mentioned under section 34 of IPC shall be fulfilled for an offence to come under joint liability. The criminal act must be done by several persons, there must be a common intention, and the act must be done in furtherance of such common intention. It must be kept in mind that the ‘act’ here includes a series of acts as a single act[3]. The reasoning is based on common sense that the members would actively participate (help, protect, etc.) in the commission of the criminal act. In the case, Reg vs Cruise[4], the principle of joint liability was propounded by the Court, where it was held that all three persons were responsible for the assault of a police officer, irrespective of the fact that the blow was given by one of them. The focal point on which the conviction is held under the joint liability is the “common intention” of the members of such group.
In the decided cases, the Supreme Court has evolved various factors which determine the trajectory of cases involving common intention. Even if there are no specific charges framed, section 34 will come into play if the evidence shows that there existed a pre-existing plan for the commission of the act[5]. In Pandurang vs State of Hyderabad[6], it was stated that such an intention could be formed even on spot i.e., at the spur of the moment. Also, the “several persons” involved must share a common intention to commit the act[7]. The physical presence of a person is not necessary to invoke section 34. For example, a person might be present at a distance while instructing his accomplices. The condition is satisfied even by virtual presence[8]. It must also be noted that in such cases the overt act of the accused needs not to be proved. It is enough if the accused shared a common intention with other members[9]. So, the act done in furtherance of a common intention is the sine qua non for an accused to be convicted under the code. The Court needs to base its rationale upon the facts and circumstances of the case as the common intention is a state of mind and not on mere suspicion or conjecture.
Group Liability-
The IPC under section 141[10] defines what constitutes an unlawful assembly. The code specifically forbids five or more persons to assemble and carry out criminal acts. Just like joint liability, the “common object” is the sine qua non of this offence. Without such an object among members, there is no such assembly[11]. Now, section 149 is the declaratory provision for the group liability of members of such an assembly, carrying out an act in the prosecution of a common object. To invoke section 149, the assembly in contention must satisfy the criteria laid down in section 141 of the code.
Under this head, the Courts decide upon whether the members of an assembly have a common object. A nexus between such an object and offence is mandatory. There is no defined rule to determine what constitutes a common object, it can only be inferred from the facts and circumstances of the case. In Masalti vs State of Uttar Pradesh[12], it was said that at least four witnesses should give an accordant account against any one of the accused so that the case can be proved beyond a reasonable doubt. It isn’t necessary to single out each act against the individual accused. It is sufficient if the members share a common object of the assembly that is unlawful according to the criteria laid down in section 141 of the code. Now, it may so happen that some members of such assembly commit acts that are beyond the scope of the common object of the assembly and there might be some persons who joined for mere curiosity[13]. In such cases, the innocent ones would not be prosecuted but the former would be liable for their individually committed offences.
In Ramu Gope vs State of Bihar[14], the Supreme Court held that if the evidence is not sufficient against an accused to prove his liability under section 149, mere membership of such an assembly would still convict him owing to the presence of a common object. But the mere absence of the name of the accused among the members of an unlawful assembly would not absolve him from group liability. If a person ceases to be a member of an assembly during the incident, he won’t be liable for any act committed beyond that point. Using gestures or expressions, a person may convey the fact that he is reluctant to further be a part of such an assembly[15]. But if a person is held due to some disability, he continues to be a part of the group as the common object is still shared.
COMMON INTENTION V. COMMON OBJECT
Both sections 34 and 149 of the IPC deal with the constructive liability principles, but the inherent difference lies in the foundation they are respectively based upon. “Common Intention” should not be confused with “Common Object” as they’re fundamentally different things. In the case of common intention, there must be some synchronicity in the intention of the members[16]. This is not the case in an unlawful assembly, as members in such a case might have a common object but their intentions might be different.
In certain cases, the charge under section 149 coincides with the grounds covered by section 34. So, if five or more persons do an act and they intend to do it, both the sections may apply. So, the crucial factor in such a case would be the presence of common intention. If it is present then section 34 would be substituted for section 149, but if there is no such intention then the position of the accused might be jeopardized[17].
CONCLUSION
So, joint liability and group liability might seem synonymous at first glance but are two different things when seen through the lens of IPC and practical usage in the criminal justice system. In the latter, the scope of a common object is limited to the five conditions mentioned in section 141 of the code, while in the former the gates are wide open and are dependent upon the facts and circumstances of each case. Section 34 is not substantive and is more in line with evidentiary nature, while section 149 is a proper substantive rule law.
In past, there have been subtle changes in these provisions to remove ambiguity. In its Fifth Report[18] on IPC, the Law Commission of India suggested substituting “several persons” in place of “two or more persons” in section 34 of the code. The primary intent of the draftsmen of these provisions is to spare the prosecution of the onerous task of proving the individual acts of persons involved in such cases. These provisions are also an attempt to deter people from committing offences in a group. The existing provisions are in no way exhaustive. This is truer in the case of joint liability wherein there are no fixed criteria and the conviction of an accused is dependent upon the wisdom and inference of the judge.
Author(s) Name: Rishabh Tyagi (Campus Law Centre, University of Delhi)
Reference(s):
[1] Indian Penal Code, 1860, § 34, No. 45, Acts of Parliament, 1860 (India).
[2] Indian Penal Code, 1860, § 149, No. 45, Acts of Parliament, 1860 (India).
[3]Indian Penal Code, 1860, § 33, No. 45, Acts of Parliament, 1860 (India).
[4]Reg vs Cruise (1838) 8 C & P 541.
[5] Garib Singh vs State of Punjab, AIR 1973 SC 460.
[6]Pandurang vs State of Hyderabad, AIR 1955 SC 216.
[7] Hanuman Prasad vs State of Rajasthan, (2009) 1 SCC 507.
[8] Suresh vs State of Uttar Pradesh, (2001) 3 SCC 673.
[9] Anil Sharma vs State of Jharkhand, AIR 2004 SC 2294.
[10] Indian Penal Code, 1860, § 141, No. 45, Acts of Parliament, 1860 (India).
[11] Muthuramalingam vs State, (2017) 1 SCC 477.
[12]Masalti vs State of Uttar Pradesh, AIR 1965 SC 202.
[13] State of Rajasthan vs Shiv Charan, (2013) 12 SCC 76.
[14]Ramu Gope vs State of Bihar, AIR 1969 SC 689.
[15] Rex vs Sadla, AIR 1950 All 418.
[16] Raj Nath vs State of Uttar Pradesh, (2009) 4 SCC 334.
[17]Chittarmal Moti vs State of Rajasthan, (2003) 2 SCC 266.
[18] Law Commission of India, “Forty- Second Report: The Indian Penal Code”, Government of India, 1971.
