Distinction between Section 34 and Section 149
Authored By- Amit Patel
Joint liability, common intention, common objective, accomplice
Both Section 149 and Section 34 of the IPC deal with a person’s association that an individual is responsible for the action of another person. The elements of both sections are different and are applied in different circumstances and acts. Section 34 deals with the common intention whereas Section 149 deals with a common objective which seems to be the same but is different which is discussed in detail.
Section 34 and Section 149 of IPC speak about the rule of constructive liability which in a broader sense means that an individual is responsible for the action of another person’s, but Section 34 and Section 149 are mutually exclusive. For a crime to be accomplished two things are seen the act and the intention (mens rea). Section 34 defines the joint intention and deals with joint liability. It states that 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. Whereas, Section 149 talks about an act committed by any person among the unlawful assembly, then all the persons present in the unlawful assembly is liable.
Introduction to Section 34 under IPC, 1860
As discussed above it can be said that the states that if two or more then two persons have the common intent to commit the unlawful act, then no matter if the act is committed by any one or more person every person having the common intent to commit the act will be held liable as if it were done by him alone.
In the case of Barendra Kumar Ghosh v. King Emperor’s the tribunal held an individual liable for the acts committed by another person in furtherance of the common intention.
Involvement of a person in the wrongful act
The objective behind Section 34 of IPC is to differentiate between the criminal act, that whether it is done by an individual on his own or whether someone acted as an accomplice to that criminal act. An accomplice is a person who helps the criminal or provides him with the material to do such act or on knowing about the act supports him, which is the reason, everyone is found guilty under this section. If the accomplice would not have been involved in the act might not be able to accomplish this they all are held liable for their involvement in the illegal act.
Elements of Section 34
· Common intention: The basic and the most important element to commit an offense under joint liability reside in the presence of a common intention, although it should be in support of the common goal of all the members present in the group. The term ‘common intention’ means the meeting of the mind in the same sense. Their acts to commit the offense must vary but the intention should remain common.
Although, for the acts committed by one person without prior consulting with the group members in which they do not share intent all the members, in this case, cannot be held liable. It was also held in the case of Ram Bilas Singh v. State of Bihar case where it was stated that the term of the punishment for each person who has committed that act with a common intent depends on the nature and gravity of the crime committed.
· Participation in The Criminal Act: Participation of the person in an illegal act by the group is an important element for proving joint liability and there must be some act that indicates the intention to commit that very particular act. According to the established law, the person accused of the act should be found at the crime spot or anywhere nearby crime spot.
In the case Barendra Kumar Ghosh v. King Emperor, the trial court, held the accused guilty though he had not even fired the shot, as he was caught in his hand with a pistol which was handed over to the police.
Introduction to Section 149 under IPC, 1860
Section 149 of IPC, states that every member of an unlawful assembly is guilty of offence committed in prosecution of the common object.
The section simply says that wherein a group of peoples assembles for a ‘common object’ and at the time of the gathering if any person commits any illegal act then and there, then every member of that assembly will be held liable for the commission of the illegal act.
In the case of Bhudeo Mandal v. the State of Bihar, it was held by the apex court that the proof must obviously establish not only the common object but also demonstrate that the common object was illegitimate.
Elements of Section 149
There should be a common objective among every member of the unlawful assembly.
Members should aware of the likely events to be followed by the assembly members.
There should be five members or more than five members then only according to section 149 the gathering is constituted as unlawful assembly.
The act done by the assembly should be illegitimate.
Difference between common intention and common object
The common intention is confused with the common objective, whereas there are differences in the operations of both sections. Both the sections impose vicarious liability but are different in scope and nature of the operation.
Under section 34 there should be two or more persons, whereas under section 149 there should be at least five persons to constitute an offense.
Section 149 deals with a particular offense i.e. unlawful assembly, whereas section, do not deal with any offense rather states the principle of joint liability.
‘Common intent’ used in S.34 has not been defined anywhere in the IPC, whereas’ common object’ must be one of the five ingredients defined in Section 149 of the IPC.
Common intention needs a prior meeting of the mind whereas common objective does not.
Section 34 requires active involvement in act whereas it is not necessary for section 149
Section 34 and Section 149 are mutually exclusive; elements of both the sections are different and are applied in different circumstances and acts. One should understand the elements of the provision to interpret the law and which tells us in that section 34 do not deal with any offense rather states the principle of joint liability, whereas Section 149 deals with a particular offense i.e. unlawful assembly.
Indian Penal Code, No. 45, § 34. Barendra Kumar Ghosh v. King Emperor’s,(1925) 27 BOMLR 148. Ram Bilas Singh v. State of Bihar case, AIR 1989 SC 1593. Barendra Kumar Ghosh v. King Emperor,(1925) 27 BOMLR 148. Indian Penal Code, No. 45, § 149. Bhudeo Mandal v. the State of Bihar, (1981) AIR 1219.