The Supreme Court in its judgement recently held that it had now been made permissible to switch a charge that was under Section 149 of the Indian Penal Code into a charge that was under Section 34 of the Indian Penal Code if the facts prove that the crime was actually committed in the furtherance of an intention that was common.

[THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA & ORS.V. SHAJI POULOSE & ORS]

The bench comprised of Justices  SN V Ramana, Surya Khan and Aniruddha Bose and it observed that Sections 211 to 224 of criminal procedure code give significant flexibility to courts for altering or rectifying the charges as these sections deal in the framing of charges in criminal trials.

The bench while giving the judgement quoted the dictum laid down in the case of Karnail Singh v State of Punjab (1953). It had been held in this case that 

“…if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under section 34 then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must be held to a formal matter.” 

The bench also made observations that even when the Sections 34 and 149 of the Indian Penal Code are both modes for apportioning vicarious liability on either individual members of a group there actually exists some important differences between the two provisions and Section 149 of the Indian Penal Code has been formulated to assign liability on the basis of membership of an unlawful assembly however Section 34 requires such active participation and a prior meeting of minds so that the section can be proved. Such common intention, however, is in reality usually referred to indirectly on the basis of the conduct of the individual and it is very rarely done with the help of direct evidence.

What do Sections 149 and 34 of the Indian Penal Code provide?

Section 149 of the Indian Penal Code provides for the vicarious liability of members who engage in an unlawful assembly for the crime committed by any member of the assembly for the furtherance of a common object and also makes such persons liable for the same punishment. The prerequisite required for invoking this section is that there should be more than 5 or at least 5 persons in the assembly.

Section 34 of the Indian Penal code, on the other hand, holds that whenever a criminal act is done by several persons in the furtherance of any common intention that is held by each one of them then each of such person is liable for that act in the same manner as if it was done by either of them alone.

In the present case, the Supreme Court was actually dealing with a situation where 3 out of a group of 7 persons who had been accused under section 307 of the Indian Penal Code which provides for an attempt to murder had been acquitted. Since the number of convicts under the assembly had now become less than 5 hence the application of Section 149 was not possible in the present case the issue, therefore, arose before the court as to whether it was lawful if the court could make the use of Section 34 of the Indian Penal Code that is the common intention in order to ascribe criminal liabilities to members of the group.

What the Supreme Court opined- 

With the reference made to various precedents, the Supreme Court came to the conclusion that Section 34 of the Indian Penal Code could be used in such a situation if the common intention had already been proved.

The Supreme Court was of the decision that the appellants  had not suffered any unfavourable effects when three of them had been held individually guilty for the offence by the Punjab and Haryana High Court for attempting murder without the aid of Section 149 of the Indian Penal Code thus on the said facts the Supreme Court was of the opinion that the requirements of Section 34 of the Indian Penal Code had been well established in the present case as the attack was apparently premeditated. 

Consequently, the conviction of the appellants under section 307 of the Indian Penal Code for the attempt of murder was thus upheld.

Report By-Alifya Kasimuddin