Topic (2) : Criminal liability for sharing common intention; for being member of unlawful assembly and sharing

common object; for criminal conspiracy and committing abetment. 1. Salient features and underlying principles of the provisions contained in.
(A) (B) (C) (D)

Sections 34,35 and 36 of the Indian penal code Chapter V of the Indian penal code Chapter VA of the Indian penal code Chapter VIII of the Indian penal code Salient Features

Ans.1. (A) Section 34 of I.P.C:

Before a man can be held liable for acts done by another under the provisions of S.34 it must be established that , (a) There was common intention in the sense of a pre arranged plan between the two, (b) The persons sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section can not apply. Principle: (a) It is only a rule of evidence and does not create a substantive offence. (b) This section embodies a principle of joint liability in the doing of a criminal act and the essence of that liability is the existence of a common intention. Section 35: Salient Features Under this section several persons who actually perform the act, must be shown to have the particular intent or knowledge if the act is criminal only by reason of its being done with a criminal knowledge or intentions. if several persons having one and the same criminal intention or knowledge jointly commit murder or an assault each is liable for the offence

as if he had acted alone but if several person join in an act each having a different intention or knowledge from the others each is liable according to his own criminal intention or knowledge and he is not liable further. Principle: if an act which is an offence in and to any criminal knowledge or intention on the part of the is done by several persons each of such person is liable for the offence. Section 36: Salient Features & Principle This section shows that when an offence is the effect partly of an act or partly of an omission, it is one offence only. This section follows as a corollary from s.32. The legal consequences of an act and of an omission being the same, if an act is committed partly by an act and partly by an omission the consequences will be the same as if the offence was commited by an act or by an omission alone. (ii) Chapter V of I.P.C.: Chapter V of I.P.C. deals with abetment. Abetment is a separate and distinct offence provided the thing abetted is an offence. Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. Salient features: Abetment is constituted i) ii) iii) By instigating a person to comment an offence By engaging in a conspiracy to commit it By intentionally aiding a person to commit it.

Principle: When an offence is committed several persons take part in the commission of it, each person may contribute in manner and degree different from the others to the doing of the criminal act. iii).Chapter V A of IPC : This chapter has introduced into the criminal law of India a new offence, namely, the offence of criminal conspiracy. Salient Features: The salient features of this offence are:

1). That there should be an agreement between the persons who are alleged to conspire, & 2). That the agreement should be for a).doing of an illegal act, or b). doing by illegal means an act which may not itself be illegal. Principle: The present Bill is designed to assimilate the provisions of the IPC to those of the English Law with the additional safeguard that in the case of a conspiracy other than a conspiracy to commit an offence some overt act is necessary to bring the conspiracy within the purview of the criminal law. The Bill makes criminal conspiracy a substantive offence, and when such a conspiracy is to commit an offence punishable with death, transportation or rigorous imprisonment for a term of two or upwards, and no express provision is made in the code, provides a punishment of the same nature as that which might be awarded for the abetment of such an offence. iv). Chapter VIII of IPC: This chapter deals with the offences against the public tranquility. Salient Features: This chapter deals with assemblies as a menace to the public peace,in a simple or in an aggravated form SS.141,142,143,144. The essential ingredients under these sections are: i). the assembly consist of five or more persons, ii).the object of the persons so assembled(either at the time it became an assembly, or during the time that it continued to be assembled)was any of the five objects mentioned in s.141. iii).that such object was common to the persons assembled, iv).that the accused joined, or continued, in such assembly, v).that he did so intentionally, vi).that he did so being aware of the above facts, vii).that such unlawful assembly had been commanded to disperse, viii).that such command to disperse was in the manner prescribed by law, ix).that the accused joined or continuedin such unlawful assembly after it had been commandedto disperse, x)that the accused did so, knowing that it had been commanded to disperse. The salient features of s.147 are: i).use of force or violence by an unlawful assembly or by any member thereof. ii). Such force or violence should have been used in prosecution of the common object of such assembly.

The main ingredients of s.148 are: Besides the ingredients of s.147, this section covers that the accused was armed with a deadly weapon, or with something which was likely to cause death, when used as a weapon of offence. The salient features of s.149 are: i). commission of an offence by any member of an unlawful assembly. ii). Such offence must have been committed in prosecution of the common object of that assembly, or must be such as the members of that assembly knew to be likely to be committed. Principle: The offences under this chapter hold a middle place between state offences on the one hand, and crimes against person or property on the other. Many of the offences made punishable by other chapters of the code involve in their commission a disturbance of the public peace. But the present chapter punishes especially unlawful assemblies of persons who, whether they assemble tumultuously or otherwise, have a common unlawful purpose in their minds, the execution of which will disturb public order and excite alarm. Q.2 Connotations of the expressions `same` `similar` and `common` in the context of the Indian Penal Code Ans.2. Honble Supreme court in Suresh V/S State of U.P. AIR 2001 SC 1344 applied the distinction between common & similar intention. The distinction between a common intention and a similar intention which is real and substantial is also not to be lost sight of.The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between common intention and similar intention may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice. What to speak of similar intention even same intention without sharing each others intention is not enough for this section. (Dajya Moshaya Bhil V/s state of Maharastra. 1984 CrLJ 1728(SC) Q.3 Distinction between common object `and` `common` intention. Ans 3. Distinction between common object & common intention: i).S.34 does not by itself create any specific offence whereas S.149 does so.

ii).Some active participation, especially in a crime involving physical violence is necessary U/s 34 but s. 149, does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in the preparation and commission of the crime . iv) v) S.34 speaks of common intention but S.149 I P C contemplates common object which is undoubtedly wider in its scope and amplitude than intention. S.34 does not fix a minimum number of persons who must share the common intention whereas, s. 149 I P C requires that there must be at least five persons who must have the same common object.

Ans. 4 Framing Changes : Common Object/Common Intention: An accused parson is entitled to know with certainty and accuracy the exact value of the charge brought against him, where it is sought to implicate him for acts not committed by himself, but by others with whom he was in company. The common object of the unlawful assembly as mentioned in the charge and as found by the court was merely to administer a chastisement to the deceased. The charge did not mention that the members of the unlawful assembly know that the deceased was likely to be killed in prosecution of that common object. The deceased was killed by the fatal injury caused by a certain member of the unlawful assembly. It was held by the Hon`ble SC that the other members of the unlawful assembly who had not caused any fatal injury could not be convicted under S.302 read with S.149 or S. 34. ( Chikkarange Gowda (1956) AIR SC 731, Surattal 1982 SCC(CRI) 260.

Common Intention In order to convict a person of an offence with the aid of S.34 Of I P C it is not obligatory to mention it or its exact words in the charge. It is always desirable that this section should be indicated in the charge. But where by oversight or otherwise, specific mention of S. 34 is not made in the charge, that defect by itself could not be fatal, if otherwise the court can come to the conclusion that the accused had notice that they

would be liable under S. 34 also, for after all S 34 in merely an explanatory provision in the code and does not create any specific offence itself. ( Mangu(1958) RLW 505,Dhansai (1969) AIR orissa 105). Abetment : In a charge of abetment,the section of the principal offence, and the particular section of abetment under which case falls should be mentioned with the circumstances which bring it under the said section. Conspiracy : The charge of conspiracy must not be indefinite. The courts must state the illegal purpose and design of the agreement entered into between the accused with such proper and sufficient certainty as to lead to the necessary conclusion that it was an agreement to do an act in violation of the law. Where there is a charge of criminal conspiracy the person charged with that offence should be tried jointly. When two or more persons have conspired together for committing some offence, and one or more of them have committed that offence in pursuance of the conspiracy but others have not, it is permissible to charge and try them together for the conspiracy as also for the substantive offence. ii) Conducting trial :

Common intention : It does not create a distinct offence, it lays down only a principle of joint criminal liability. It is only a rule of evidence and does not create a substantive offence (Srikantiah 1958 AIR sc 672). Common Object: If an offence be committed by any member of an unlawful assembly, every other member of such assembly shall be guilty of the offence. If the offence committed is a summon case then the procedure of summons case is adopted and it the offence is warrant by nature then procedure of warrant case is to be followed . Abetment: When there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong anything said,done or written by any one of such persons in reference to their common intention, after the time when such intention was first

entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any of such persons was a party to it. Conspiracy is a fact which even in a criminal case can be infered from circumstantial or oral evidence. A person, having been charged with a substantive offence, can be convicted for abetment thereof if the facts justify such conviction. The principal is that, if evidence adduced in support of the charge for the substantive offence does not give notice to the accused of all the facts which constitute abetment, he cannot be convicted of abetment. Conspiracy: If the offence falls under cl (1) of S. 120-B- Cognizable if the offence which is object of conspiracy is cognizable, but not otherwise. Warrant or summons, as the offence for which conspiracy is entered into.
iii)

Giving or declining Permission to compound the offence:

Ans. Under S320 (3) when an offence in compoundable under this section the abetment of such offence as on attempt to commit such offence where the accused is liable under S. 34 or S. 149 of the I P C may be compounded in like manner. Criminal Conspiracy: When the offence it self in compoundable S.120B of I.P.C. becomes compoundable.
iv)

Delivering judgment and recording order of conviction/Acquittal:

Ans. The Hon`ble Supreme court has held that a criminal conspiring is a separate offence punishable separately from the swain offence. (Mohd. Hussain umarkochha V/s Dalipsuighji. K.S. criminal appeals nos 139 to 144 of 1966 decided on march 31 1969 (SC) iv) For abetment: S. 109 & other offence of abetment are by itself an offence though punishable in the context of other offences. The question of acquittal as conviction of abettor depends upon the thing abetted and the offence committed . Acquittal of principal is no bar to conviction of abettor

(Jamuna singh V/s State of Bihar, AIR 1967 SC 553.) For recording order of conviction/ acquittal there should be specific intention in the judgment that the offence committed in furtherance of common object or intention and that is not proved then the accused who actually committed the offence will be liable for punishment of the offence. v) Sentencing : Ans.;- S.34 :Before any accused can be convicted of an offence read with this section, the court must arrive at a finding as to which of the accused took what part, if any, in furtherance of the common intention. A conviction without such a finding is illegal (). S.109,110,111,113,114 of IPC the sentence will be the same as for the offence commited. S. 120-B Punishment :- The punishment for conspiracy is the same as if the conspirators had abetted the offence. The punishment varies according as the offence has or has not been committed in consequence of the conspiracy. If an offence has been committed, the punishment is that provided by S. 109, though, strictly speaking, there should not be a conviction in such case of conspiracy but of abetment. If it has not been committed, the punishment is governed by S. 116 (Harsha Nath Chatterjee (1914) 42 Cal 1153; Balmokand 16 PLR 701: 16 Cri LJ 354: (1915) AIR (L) 16. The Supreme Court has held that a criminal conspiracy Is a separate offence, punishable separately from the main offence. and there is no` illegality in recording separate conviction and sentence for the offence of criminal conspiracy and the offence committed in pursuance there of the offence of conspiracy is a separate offence from the offence of participation in a particular dacoity or the dishonest reception of property stolen in a dacoity knowing it to be stolen. Separates sentences can be awarded to run consecutively for participation in conspiracy . Acts done in pursuance of the conspiracy cannot be separately punished unless these acts are separately charged and particularised as required by the Criminal Procedure Code. S. 149 of IPC Punishment :- This section creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty. Therefore, the appropriate punishment section must be read with it. It is neither desirable nor the possible to prescribe one uniform punishment for all case which may fall within it. The finding that all the members of an unlawful assembly are guilty of the offence committed by

one of them in the prosecution of the common object at once subjects all the members to the punishment prescribed for that offence and the relative sentence.( Nanak chand (1955) Cr LJ 721) Separate sentences may be passed under S. 147 and any other section which becomes applicable to the accused with reference to the terms of this section (Shoe nath (1926) 3 OWN 92 (Supp): 27CrLJ 1172). The Madras High Court has held that on a conviction under some of the hurt sections read with this section, separate sentences to run consecutively cannot be imposed. (Subba Reddi (1936) MWN 1380) Q.5. Methodology to be adopted i). When more than one of the principles relating to common intention, common object, abatement and conspiracy are clubbed in the same case. Ans. In such type of cases separate charges should be framed for common object, common intention, abatement & conspiracy. In Nanhey V/S State of U.P. AIR 1973 SC 224, Bhoor Singh V/S State of Punjab AIR 1974 SC 1256, it is laid down that if accused are charged with offences with the help of s.149 and the evidence does not make out any offence u/s 149 , the accused may be held guilty of any substantive offence with the help of s.34 if the ingredients of s.34 are present. ii). While dealing with the objections raised by the accused or the prosecutor regarding correctness of the charge framed. Ans. U/S 216 of CrPC any court may alter or add to any charge at any time before judgement is pronounced. Under cl(3) if the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. Under Cl(4) If the addition or alteration is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. The court may alter or add to any charge upon its own motion or on application by the prosecution which should be made immediately after the charge is explained by the Magistrate.

Q.6. The fundamentals to be kept in view while trying cross-cases. Ans It is settled law that cross-cases should be tried jointly. In Mitthulal v/s State of Madhya Pradesh AIR 1975 SC 149, it is held that it is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision. In Gajendra Singh v/s State of U.P. AIR 1975 1703, it is laid down that statement of witness recorded u/s.161,CrP.C during investigation in the cross-case is not at all admissible in the case in hand. b) it deters conflicting judgments being delivered upon similar facts; c) in reality the case and the counter case are, to all intents and purposes, different or conflicting versions of one incident. Q.7. The probable causes for delay in trial involving multiple accused persons and the methods to curb against such delays. Ans. Causes of delay : 1).Accused are not regularly present in court & when their bail bonds are forfeited arrest warrant is issued against the accused. But we see that its execution takes very much time. During that period the trial withheld. 2). When one of the many accused, one accused is in judicial custody, he is not regularly forwarded in court for various reasons, so that witnesses are not examined & trial delays. Methods of curbing the delays: 1). Video conferencing should be implemented. 2). Separate machinery of process serving should be provided to the judiciary.

TOPIC ONE PROPER IMPLEADING:NECESSARY PARTY & PROPER PARTY IN A SUIT

Q.1.Salient Features And Scheme Of Order 1 Of The Code Of Civil ProcedureAns. O.1 C.P.C. refers to parties to a suit Parties to a suit The most crucial element of any suit would clearly be the parties to the suit. The paper will now seek to study as who may file a suit and what parties the suit must be filed against and the consequences of not complying with the procedure strictly. And through this analysis demonstrate that the CPC has several provisions, which facilitate the better delivery of substantive justice. Order 1 deals with the subject of parties to the suit and lays down inter alia provisions with respect to joinder, misjoinder and non-joinder of parties. Q.2).Particular Features Of Rules 9,10 & 13 Of Order 1 f The CPCAns. 1) .Particular features of rule 9 -Rule 9 deals with Mis- joinder and Non- joinder of parties. Mis joinder means wrongful joining in an action.It may be mis- joinder of plaintiffs or of defendants.This rule relates to parties only and not to mis joinder of causes of action. Where right to sue exists with all the plaintiffs there is no mis joinder of plaintiffs but if some of the plaintiffs have no right to sue there is a mis joinder of plaintiffs. But mere mis joinder of plaintiffs is not fatal to the suit.Similarly,in the case of defendants if some of the persons who are neither necessary nor proper parties are also impleaded in the suit, it is a case of mis joinder of defendants.Objection as to mis joinder of defendants is also not fatal. Non joinder of parties means where either a necessary or a proper party is not impleaded in the array of parties.Rule 9 makes it clear that non joinder of parties is not fatal unless it is non joinder of necessary party.Non joinder may also be of plaintiffs or of defendants.In case of non joinder of necessary parties,ifthey are not impleaded no effectivve decree can be passed that is why a proviso is added in Rule 9 that nothing in the rule shall apply to non joinder of necessary parties.In J.J.Lal(P)Ltd. V M.R.Murali (2002)3SCC 98,it is laid down that a suit will not be bad for non joinder of parties where the presence of either of the applicants is neither necessary for the decision of the question involved nor is their presence necessary for complete adjudication of the case. 2).Particular Features of Rule 10 -The Rule 10 is divided in three parts: a).sub-rule (1) relates to suit in the name of wrong plaintiff, b).sub-rules (2) & (3) pertain to addition and striking off of parties , c).sub-rules (4) & (5) deal with consequential amendment. Sub-rule (1) gives opportunity to correct bonafide mistakes in the plaint as to names of the plaintiffs. The sub-rule (1) contemplates those cases in which suit is brought by a plaintiff who subsequently discovered that he cannot get full relief without joining some other peron a co-plaintiff. The purpose of this sub-rule is to discourage the technical pleas being raised as major objection in the cases of bonafide mistakes.

Sub-rule (2) permits addition of parties firstly when such persons should have been joined either as plaintiff or as defendant secondly when without their presence, the issues in the suit cannot be completely decided. This sub-rule (2) also empowers the Court to strike out the names of parties unnecessarily imp leaded. Sub Rule (3) Provides that no person under any disability shall be added as a plaintiffs without a next joined. Sub Rule (4) Provides for consequential amendment on addition of defendants and necessity to serve summons on such parties along with copies of plaints. Sub-Rule (5) makes it clear that suit shall be deemed to have been instituted against the newly added defendants from date of service of summons except for the purposes of limitation (3) Particular features of R. 13 Of 0.1 Of the I.P.C. 0.1 R 13 refers to objections as to non-joinder or mis- joinder. The scope of this rule is that all such objections on to non-joinder on nis- joinder of parties shall be taken at the earaliest opportunity Q.3) THE SCOPE ,OBJECT & PRACTICAL APPLICATION OF R.8 OF O.1 OF THE CPC. Ans). SCOPE : Rule 8 provides an exception to the general rule that all interested persons should be made parties to the suit. In a case where there are numerous persons having same interest in one suit, the rule enables a party to represent such numerous persons in common cause of action. APPLICABILITY : The essential conditions for applicatin of this rule are: 1) the parties are numerous. 2) They have same interest. 3) Necessary permission be obtained & 4) notice must be given or published. OBJECT: The object of the rule is that where it is practically difficult to implead all persons as parties and they are not small in number one or more of such persons may sue or be sued in the reprentative cpacity. Such persons representing others should have the same interest with those who are not added in the array of parties and he need not to show any authoity to represent others. EXAMPLES : 1).Tenants or lease holders of a colony having common grievance against their landlord may also file suit in representative capacity. Q.4. DISTINCTION BETWEEN PROPER PARTY & NECESSARY PARTY Ans.) A necessary party is one without whom no order can effectively be made, whereas a proper party is one in whose absence an effective order can be made, but

whose presence is necessary for complete and final decision on the question involved in the proceedings. ( Udit Narain V/S Board of Revenue AIR 1963 SC 786, ( U.P.A.V.V.Parishad V/S GyanDevi (1995)2 SCC 326) TEST TO DETERMINE WHO IS A NECESSARY PARTY OR A PROPER PARTY: Out of several tests for deciding the question if a third person should be allowed to be added as a party in a suit, the important tests are: I) Whether the result of the suit will affect the third party applicant, II) Whether the court will be required to answer any issue other than those arising or would arise from the pleadings of the parties to the suit, & III) Whether the presence of the party will facilitate effective and complete adjudication of all questions involved in the suit. A party may be added although no relief has been claimed against him. His presence is necessary for a complete and final adjudication. He is thus a proper party.( Anil Kumar V/S Shivnath (1995)3 SCC 147. EFFECT OF NON-IMPLEADMENT OF A NECESSARY PARTY & THE EFFECT OF NONIMPLEADMENT OF A PROPER PARTY: Under O1R9 of CPC no suit shall be defeated by reason of the misjoinder or non joinder of parties, and the court may in every suit dea with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to non joinder of a necessary party. Q.5.) The distinction between misjoinder of party and misdescription of party: the effect of mis-joinder of a party and the effect of misdescription of a party . Ans.5. Mis-joinder means wrongful joining in an action. It may be mis-joinder of plaintiffs or of defendants. It is not fatal to the suit. While misdescription of parties means wrong details of the parties. It may be fatal if because of the wrong details the proper person is not served with notice and decree is passed against the wrong person. In Indian Bank V/S Teetile Inland Agencies & Oth.AIR 1992 Cal 296 it is held that misdescription of parties is not fata, if the real person has been served with notice and represented by a counsel. Q.6) The methodology to be adopted by the court for proper but expeditious dealing with different nature applications that are moved during the course of a suit for (a) addition or striking out of parties and (b) raising objections about non_joinder or misjoinder of party. Ans.6. Under O.1 R 10(2) of CPC the court may strike out or add parties. In the case of Udit V/S Addl. Member, Board of Revenue AIR 1963 SC 786, Munshi V/S Narsi AIR 1983 SC 271, it is laid down that court can sue moto or on the applicabil of a party can add or implead a proper party for completely settling the dispute. The court should have been very circumspect in dealing with the application of a third party seeking leave to become party in the suit, when the plaintiff,

who is the dominus litis of the suit, is opposed to it. If the consequence of such addition would involve a de novo trial, the court should normally have disallowed the application. ( Anokhe Lal V/S Radhamohan Bansal & Oth., AIR 1997 SC 257, 1996(5) SCC 730. Q.7 The relevance of the stage of suit while dealing with any question regarding joinder, non joinder or misjoinder of parties. Ans.7 Under 0.1 R 13 of CPC objections as to defect of parties has to be raised at the earliest opportunity. A belated of objection cannot be allowed to defeat the rights of the parties. So the objection will be deemed to have been waived unless raised before settlement of issues (i) Promode V/s Swadesh AIR 1964 TRI 13, (ii) Nuratmal V/s Tarinibala AIR 1980 Gau 30. The objection cannot be raised in the court of appeal for the first time. (Jamuna V/s Patarea AIR 1977 Ori 119). A belated objection can be raised if the ground for such objection arises belatedly. Q.8) Computing limitation qua a newly added party in a suit. Ans. According to Sec. 21 of the Indian Limitation Act, 1963, Where after the institution of a suit, a new plaintiff or defendant is substituted or added the suit shall as regards him, be deemed to have been instituted when he was so made party provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to mistake made in good faith it may direct that the suit as regards such plaintiff of defendant shall be deemed to have been existed on the earlier date. Sub Sec. (2) provides that nothing in subsection (1) shall apply to a case where a party is added or substituted owing to assignment on devolution of any interest during the pendency of a suit or a plaintiff is made a defendant and a defendant is made plaintiff. In view of the previso to Sec. 21 of the Limitation Act, 1963 only those parties added to the suit shall be treated to have been party since the date of institution of suit for the purposes of limitations who were by bonafide mistake left out and later added. Similar exception applies to the persons transposed from one side to another side of the suit.

Q.9 Transposition of parties where the plaintiff seeks to withdraw from a partition suit or a suit filed under order 1 Rule 8 of the code of civil procedure. Ans.9 The dictionary meaning of the word Transposition is to change the places. Patition Suit:- In a patition suit court cannot allow the plaintiff to withdraw a patition suit without notice to the defendant since the defendant has a right to be transposed as plaintiff (B. Pattabhiramayya V/s B. Gopal Krishna AIR 1986 AP 270) In the case of Basudev V/s SeshNarayan AIR 1979 Pat. 73 it is held that in a partition suit transposition should be allowed liberally.