INDIAN PENAL CODE ASSIGNMENT

VICARIOUS LIABILITY

SUMITTED TO: SUBMITTED BY:

MRS KOMAL VIG MUKUL ARORA
A3256118032

1
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
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 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 conspiracy and waging war against the State) and
it is commonly discussed and interpreted in law courts as it is an integral question
in a large proportion of criminal cases. In Maksud Saiyed vs State of Gujarat1, 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 Court said that a bona fide mis-description of the
pending case which did not materially influenced the decision of the investors did
not give rise to a cause of action for filing a complaint2

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
2
www.business-standard.com/article/opinion/m-j-antony-fuzzy-logic-of-vicarious-liability-108031201040_1.html ,
16/09/2013

2
 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 v. 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 then this section does 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.

3
 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
the common object of the unlawful assembly of which the accused were members3.
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

3
http://www.legalblog.in/2011/09/common-object-under-s-149-of-indian.html#sthash.X4pVIKdA.dpuf, 16/09/13

4
on the fact that whether other members knew that the offence that was committed
was likely to be caused in pursuance of the common object4.

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.

4
http://www.legalservicesindia.com/article/print.php?art_id=1343, 17/09/13

5
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
that the assault by the other two5. In M/s Thermax Ltd vs K M Johny, the Supreme
Court stated that "though civil law recognizes the principle of ‘vicarious liability’
of directors of companies, the concept is not acknowledged in criminal law6.

5
http://www.myarticle.com/Law/Criminal-Law/joint-liability-and-group-liability-under-indian-penal-code-1860-a-
critical-analysis.html, 17/09/13
6
http://www.citehr.com/367452-directors-not-vicariously-liable-crime-company-supreme.html#ixzz2i9QZ5ehL,
16/09/13

6
 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
assembly, is guilty of that offence7.

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.

The major two distinctions between the two are as8 :-

(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 non-
applicability of section is, therefore, no bar in convicting the accused under
7
http://www.lawyersclubindia.com/articles/Differences-between-Section-34-and-Section-149-IPC-
4591.asp#.Uq8Rq1Awqe0, 18/09/13
8
http://www.dabangvakil.com/indianpenalcode/section34ipcdhara.html, 18/09/13

7
 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
(ii) 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 Bihar10

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
separate offence11.

9
, (1991) Cr LJ 3133 (SC)
10
(1989) Cr LJ 1782: AIR 1989 SC 1593
11
http://www.shareyouressays.com/119752/difference-between-section-34-and-section-114-of-indian-penal-
code-1860, 17.09/13

8
 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
an agent.”12

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 liable.

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

9
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
abrogated by statutory provisions , as also at Common Law13.

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
duty is punishable criminally. In R. v. Stephens14 , 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
14
(1866) L.R. 1 Q.B. 702.

10
 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
against vicarious liability15. 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
Allen v. Whitehead16, 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.

In Wilson v. Murphy17, 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.
16
(1930) 1 K.B. 211.
17
(1937) 1 All E.R. 315

11
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
two cases18

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

12
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
too. Lord Goddard , C.J. In Gardner v. Akeroyd19 , called vicarious liability as
‘odius’ but observed that “it is a necessary doctrine for the proper enforcement of
modern legislation , but it is not one to be extended20.

19
(1925) 2 Q.B. 743 at 751
20
Prof. Mishra, S.N.; Indian Penal Code, Central Law Publication, 19th Edition, 2013, p50

13
 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.

14
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
complaints against the Directors21.

21
www.justicusindia.blogspot.in/2010/06/directors-vicarious-criminal-liability.html ,17/09/13

15
 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. 34 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
16
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

17
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
S.35 of the Penal Code would solve every problem.22
In Krishnan v. State of Kerala23, 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
23
AIR 1997 SC 383

18
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
to corroborate such allegations of community of interest24

24
See Supra 4

19
 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
accordingly.”25

In M/s. Thermax Ltd. & Ors. Vs. K.M. Johny & Ors.26 , 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
Indian Penal Code, the judgment explained.27

In Amerika Rai & Ors. v. State of Bihar28, 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
26
CRIMINAL APPEAL NO. 1868 OF 2011
27
http://taxguru.in/corporate-law/directors-not-vicariously-liable-for-crime-of-company-supreme-
court.html,19/09/13
28
(2011) 4 SCC 677

20
common object makes such a person vicariously liable for the acts of the unlawful
assembly.29

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
and are personally involved."30

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.

29
http://www.legalblog.in/2011/09/common-object-under-s-149-of-indian.html#sthash.w2f5iN7i.dpuf, 19/09/13
30
http://articles.timesofindia.indiatimes.com/2011-01-06/india-business/28354731_1_top-management-shivraj-
puri-citibank-s-gurgaon, 19/09/13

21