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Report No. 42

2.61. Section 34.-

A good deal of serious crime is the result of concerted action by several persons. Criminal law has, therefore, to deal with the problem of individelliability, where several persons are concerned in the commission of an offence. Sections 34 to 38 of the Code are designed for that purpose, but it is section 34 which is the most important and most frequently in use. The principle it enacts is quite simple. To borrow the words of a High Court Judge1, the section "embodies the ordinary commonsense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually".

1. Waryam Singh, ILR 1941 Lah 423.

2.62. Re-draft suggested to remove ambiguity.-

The wording of section 34, however, is such that it has at times been misunderstood; and until the decision of the Privy Council in Barendra Kumar Ghose, AIR 1925 PC 1., cleared the whole ground, there was considerable difference of opinion regarding its meaning. The Privy Council view has been accepted by the Supreme Court so that about the meaning of section 34, there is now no doubt. It is, however, desirable that the ambiguity felt in the language of the section should be removed. At present, the section runs thus.-

"34. 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."

Stephen J. of the Calcutta High Court, in Emperor v. Nirmal Kanti Roy, ILR 41 Cal 1072, found difficulty in regard to the true meaning of the phrase "criminal act done by several persons"; and although, in that case, two men, obviously acting in concert, had fired on a policeman, one hitting and killing him, and the other failing to hit him at all, the learned Judge directed the acquittal of the latter, holding that the criminal act, i.e., murder, was done by one man alone, and not by several persons. This view was overruled by the Privy Council1. In order to make the meaning easier to understand, we suggest the following re-draft of the section.-

"34. Acts done by several persons in furtherance of common intention.- Where two or more persons, with a common intention to commit a criminal act, do any acts in furtherance of such common intention, each of them is liable for the criminal act done as if it were done by him alone."

1. Barendra Kumar Ghose, AIR 1925 PC 1.

2.63. Suggestion to equate with section 149 not approved.-

One other suggestion in this connection needs to be considered. It will be noticed that section 34 is attracted only if several persons are acting in furtherance of a common intention. The suggestion is that such common intention is not easy to prove, and that the law regarding vicarious liability should be further tightened to make it correspond to section 149, which applies in case of an unlawful assembly and makes the prosecution of a common object the test of vicarious liability.

We do not, however, think it wise to extend the rule applicable to the members of an unlawful assembly, to every person. A "shared intention" to commit a crime should, we think, remain the basis of liability in ordinary cases. There is, we feel, considerable difference between the furtherance of a "common intention" mentioned in section 34 and the pursuit of a "common object" mentioned in section 149, and a possible difficulty in proving one or the other need not demolish the distinction.

2.64. Section 35.-

Section 35 deals with a situation where an offence requires a particular criminal intention or knowledge and is committed by several persons. Each of them who joins the act with such knowledge or intention is liable in the same way as if it were done by him alone with that intention or knowledge. This is complementary to the main rule in section 34, and the two have to be read together. There is no need to clarify the position further, and we are suggesting only a small verbal alteration in the section1, namely, for the words "several persons" the words "two or more persons" may be substituted.

1. Cf. section 34 as proposed to be amended in para. 2.62 above.

2.65. Section 36.-

Section 36, again, says what is plain commonsense: if the causing of any effect by an act or an omission is an offence, the causing of the same effect partly by an act and partly by an omission would also be an offence. It was, perhaps, unnecessary to put such a proposition in the Code itself; but, since it is there, we do not think we should now delete it.

2.66. Sections 37 and 38.-

Section 37 provides that when several acts are done so as to result together in the commission of an offence, the doing of any one of them with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence, while section 38 provides "that where several persons are concerned in the commission of a criminal act, they may be guilty of different offences". These provisions have presented no difficulty in actual working, and need not be disturbed.

2.67. Section 3.-"voluntarily".-

No amendment is required in section 39 which defines the expression "voluntarily".

2.68. Section 40--"offence".-

The three clauses of section 40 give three different definitions of the expression "offence". The first clause provides that except in the chapters and sections mentioned in clauses 2 and 3 the word offence denotes "a thing made punishable by the Code". According to clause 2, in chapters IV and VA and also in some 34 sections enumerated therein, the word offence denotes "a thing punishable under the Code or any special or local law". Clause 3 lays down that, in the eight sections mentioned therein, the word "offence" has "the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards whether with or without fine."

It appears to us that the present definition is rather awkward and is not conducive to either clarity or convenience. Whenever a question arises as to the meaning of the word "offence" appearing in a particular section of the Code, one has to go back to section 40 and wade through the clauses to find out where the section in question is mentioned. We feel that the simple definition of the word "offence" in the General Clauses Act1 should be sufficient for the Code. If the word "offence" occurring in a particular section of the Code is intended to have a different meaning, the matter may be dealt with suitably in that particular section.2

1. General Clauses Act, 1897, section 3(38).-

"offence" shall mean any act or omission made punishable by any law for the time being in force.

2. See, for instance, sections 73 and 90.

2.69. "Capital offence".-

The Code refers in several places1 to "offences punishable with death or imprisonment for life", the obvious intention being to cover only those offences for which death is either the only punishment prescribed or at least one of the punishments permissible under the law. Though the expression is not intended to cover an offence for which one of the alternative punishments provided is imprisonment for life (e.g., the offence of sedition under section 124A), it is possible to argue that it does. Such an interpretation has been accepted by the Court in regard to section 497(1) of the Code of Criminal Procedure where this expression occurs. We therefore propose to add in the Penal Code a definition of "capital offence" as meaning any offence for which death is the only punishment, or one of the punishments, provided by law and use this expression instead of the longer and ambiguous phrase "offences punishable with death or imprisonment for life" in the relevant sections.

1. See, for instance, sections 115, 118, 120B, 388, 389, 506.

2.70. Sections 41 and 4.-"special law" and "local law".-

Section 41 and 42, which define the expressions "special law" and "local law", respectively, do not require any modification.

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