Joint and Constructive Liability | Law Optional Notes for UPSC PDF Download

Joint criminal liability

It refers to the liability of two or more persons for an offence. Where two or more persons are engaged in commission of an offence, if any one of them or more done an act which is prohibited by law, for benefit of all of them, each person engaged will be liable for that act in the manner as it is solely committed by him. This rule of criminal law is called as joint criminal liability.

Section 34 of the I.P.C.,1860, states that - where an act is done by the several persons in furtherance of common intention of all, each of them would be liable for that act in the same manner as it is done by him alone.

Essentials of the Section 34

In order to constitute joint criminal liability under section 34 following essentials must be fulfilled:

• Common Intention
• Several persons
• Criminal act

Common Intention

It refers to the intention shared by all the persons involved. An intention becomes common when it is shared by several persons engaged in a particular act.

In the case of Birendrakumarghosh V. King Emperor, also known as postman case, it was observed by the apex court that a person standing outside the post office to give signal to his fellows will be liable, as the postman was murdered by one of his fellows. Here court taken into the account that the offence has been committed in pursuance of common intention. So, if the person is not physically present at the place of murder, it does not matter to the extent the act has been done in pursuance of common intention.

The honorable court quoted that:

• They also serve who stand still and wait.

In the case of Mehboob Shah V. Emperor, it was observed that the criminal act done must be in the pursuance of common intention.

Further extending the scope of common intention the court in case of Pandurang V. Hyderabad, observed that for constituting common intention pre-arranged plan or prior meeting of mind is essential.

In another case, Kirpal Singh V. State of U.P., the court had observe, the common intention may develop on the spot.

In case of Dukhmochanpandey V. State of Bihar, where 20 labors were working in a field and 200 people reached to stop them. During the course murder and grievous hurt has been caused. The court held two people liable for murder and ten for causing grievous hurt. Further, the court said that the common intention must be distinguished from similar or same intention.

Scope of Common Intention:

• Must be shared by several persons.
• Prior meeting of mind or pre -arranged plan is required.
• May develop on the spot.
• Must be distinguished from similar or same intention.

Several Person

Here, several persons refer to more than one person. If two or more persons are engaged in commission of an act. It can be said to be committed by several persons. One person alone cannot said to be several person. For constituting several persons minimum two persons are required.

Criminal Act

Criminal act refers to an act which is crime. Crime is whatever prohibited by the criminal act. Criminal act in pursuance of common intention is essential for constituting criminal liability under section 34 of the I.P.C.

Section 35 of I.P.C.,1860

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 se if it is done by him alone with that knowledge or intention.

Essentials of Section 35

For constituting joint criminal liability under this sections following essentials must be fulfilled:

• Criminal knowledge or intention
• Several Persons
• Criminal act

Section 37 of I.P.C.1860

When an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any of those acts, either singly or jointly with any other person, commits that offence.

Essentials of Section 37

For constituting joint criminal liability under section 37 following essentials are required;

• Criminal act, committed by means of several acts,
• Intentional co-operation,
• By doing any of the act or acts constituting the offence.

Section 34 read with Section 114 of I.P.C.1860

Section 114 talks about the liability of the abettor, if present at the place of the offence at the time of its commission, he will be liable equally to the principle offender. By reading the section 114 in the light of Section 34 joint liability of the abettor and principle offenderis created.

Section 34 read with Section 396 of I.P.C.1860

Section 396, talks about, dacoity with murder, if the murder is committed while dacoity all the persons involved in such dacoity will be liable for such murder, constituting joint liability under section 34.

Section 34 read with Section 460

Section 469, itself, constitutes joint criminal liability. Where death or grievous hurt is caused by the persons jointly concerned in lurking house trespass or breaking house by night, they all shall be liable for that offence constituting joint liability under section 34.

Constructive liability

Constructive liability is the advanced version or the further extension of the Joint liability. Where the offence is committed by any of the member of unlawful assembly in furtherance of the common object of that assembly each member of that assembly would be constructively liable for the act as if it is done by him, irrespective of the fact, if he is present at the time of commission of the act or not, mere membership is sufficient.

Section 149 of I.P.C.1860, states that - If an offence is committed by any member of unlawful assembly in prosecution of 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 the member of the same assembly, is guilty of that offence.

Essentials of Section 149

• Offence should have been committed by the any member of unlawful assembly,
• It has been committed in pursuance of common object,
• Membership of the same assembly.

Unlawful assembly: Unlawful assembly is defined under Section 141 of I.P.C.1860, as the assembly of five or more persons, if the common object of the persons composing that assembly is unlawful.

Common object

As per the section 141 of I.P.C.1860, common object of the person composing an unlawful assembly must be:

• Mischief, Criminal trespass
• Show of criminal force or using criminal force to override government.
• Forcible possession or dispossession of the property
• Illegal compulsion
• Resisting execution of law

Membership of the same assembly

Mere membership of the assembly at the time when such offence has been committed is sufficient to make a person constructively liable for the offence committed.

Distinction between Section 34 and Section 149