Joint Liability in IPC- Joint and Several Liability
Joint Liability in IPC
The joint criminal liability doctrine appears more as the ‘magical weapon’ in the prosecution of crimes. Yet, the doctrine not only gives escalation to conceptual confusion and conflicts with some fundamental principles of criminal law but also attacks the traditional ambit of command responsibility liability.
This becomes understandable if both doctrines are applied simultaneously in cases against the accused with some kind of superior position. After a short overview of both doctrines, as interpreted in modern case law, the article stretches some examples of their simultaneous application and tries to advance distinguishing criteria in light of the case law and a ‘dogmatic’ analysis of both the doctrines.[1]
The common law recognized four parties to Crime viz.
- principals in the first degree- actual perpetrators;
- principals in the second degree – aiders and abettors, such as to get way drivers, conspirators;
- accessories before the fact – aiders and abettors not present when the crimes are committed, such as one who supplies the weapon that a third person uses in a murder; and
- accessories after the fact- individuals who give aid and assistance to criminals who are fugitives. If they were not convicted before the accomplices were brought on trial, common law complicity shielded the accomplices even in the face of sure proof of their guilt.
Normally and naturally the person who is liable for wrong is who does it. Yet both ancient and modern laws admit instances of vicarious liability in which one man is made answerable for the acts of another.
Section 34 of the Indian penal code deals with the concept of Joint criminal Liability.[2] According to the section 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. The section can be explained as when two or more persons commit any criminal act and with the intention of committing that criminal act, then each of them will be liable for that act as if the act is done by them individually.
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The ingredients of section 34(Joint Criminal Liability) of IPC are: A criminal act is done by several persons; The criminal act must be to further the common intention of all; There must be the participation of all the persons in furthering the common intention. The essence of liability under Section 34 IPC is the simultaneous conscious mind of individuals sharing in the criminal action to bring about a specific result. Minds concerning the sharing of common intention get contented when an overt act is established qua to each of the accused[3].
Common intention infers a pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime essentially committed and each accused person can be convicted of that crime, only if he has contributed to that common intention.
The Courts’ Interpretation of Section 34[4]
It is now obligatory to consider how the courts have interpreted section 34, with the inclusion, of course, of the all-important phrase in furtherance of the common intention of all. As was pointed out previously, the courts have experienced many difficulties in this exercise. There are three core areas that have caused problems; the meaning of the criminal act, the connotation of common intention, and the related issue of whether the common intention must be to compel the crime actually committed or whether it could embrace some other, or wider objective. Criminal Act
The issue which has arisen is whether these words are a synonym for actus Reus or for something else. The difficulty is that if they stand for actus reus, then the section necessitates that the actus reus be done by all of the accused. This situation is fitted out for by section 37 if the actus reus consists of several acts, and by the substantive law if it comprises of one-act, for all the accused are perpetrators anyhow.
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The Privy Council pointed this out and established dispute on the matter in Barendra Kumar Ghosh v. The King-Emperor[5]where they held that the words mean: that unity of criminal behavior, which results in something, for which an individual would be punishable if it were all done by himself unaccompanied, that is, is a criminal offense. A couple of situations for which section 34 is no doubt designed are consequently covered.
If it is impossible to verify which accused inflicted the fatal injury, then the unity of behavior “the participation of all in the attack” enables all to be held liable. If the accused was categorically only an accomplice and not the perpetrator, yet his participation contributed to the result and he is accordingly liable for it, for in crimes as in other things ‘they also serve who only stand and wait.’
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Common Intention
The Privy Council in Mahbub Shah v. Emperor[6] cast some light on the meaning of this phrase, holding that it: implies a pre-arranged plan, and to convict the accused of a crime applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.
A Common Intention to Do an Offence?
The final difficulty in section 34(Joint Criminal Liability) lies in influential if the common intention must have been to do the criminal act done, or something else. If the intent is to do the criminal act, then a collaborator may argue that he did not intend or desire the consequence, and therefore is not liable for it, even if he knew it was likely.
This narrow interpretation of the section was taken in R. v, Vincent Banka & Anr.[7], but it evidently provides an easy let-out for defendants and has been rejected in Singapore in recent cases. Notably, in Mimi Wong & Anor. v. Public Prosecutor[8]the Court of Criminal Appeal said: If the nature of the offense [constituted by the criminal act] depends on a particular intention the intention of the actual doer of the criminal act has to be considered. What this intention is will decide the offense committed by him and then section 34 applies to make the others vicariously or collectively liable for the same offense.
The intention that is an ingredient of the offense constituted by the criminal act is the intention of the actual doer and must be distinguished from the common intention of the doer and his confederates. It may be identical with the common intention or it may not.[9]
Where it is not identical with the common intention, it must nevertheless be consistent with the carrying out of the common intention, otherwise, the criminal act done by the actual doer would not be in furtherance of the common intention.
Conclusion
The notion of joint criminal liability is embodied in section 34 of the Indian penal Code. This section just elasticities the definition of joint liability and it does not give any punishment for the same. This section has to be read with various other sections of IPC like section 120A[10] which gives the definition of criminal conspiracy, section 120B[11] which gives punishment for criminal conspiracy, and section 149 which deals with unlawful assembly. Section 34 cannot be pragmatic on its own and has to be applied with some other section so as to make a person jointly liable for that offense.
In the hypothesis, the scholar has assumed that the presence of an individual at the site of offense is not conclusive evidence that he is a part of the offense. The premise of the researcher stands true that it is not necessary that all the persons who are present at the site of the offense are some way or other related to the crime committed.
With the support of cases, the hypothesis of the researcher stands true. In all the above cases the accused persons were present when the crime was committed and at the initial instance, they were charged for committing the offense but later on, they were acquitted by the higher court.
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It is also not compulsory that the persons always share the common intention and commit a crime. It may be possible that they are present at the scene just by chance and shared no common intention which is a vital component of section 34 of the Indian Penal Code.
At last, I want to say that at any site of offense it is not at all essential that only two persons are present i.e. accused and victim, but a number of other persons like witnesses are also present at the scene of crime most of the time. So, making an individual liable just because he was present at the scene of a crime or was near to the victim is not justified.
JCL (Joint Criminal Liability) is a victim-centered, far-reaching philosophy often used to prosecute the senior leadership as well as low-level individual perpetrators accountable for a broad range of crimes perpetrated in the names of former leaders. For example, there are substantial benefits to its use in its wide version (e.g.) when an international court custom the doctrine to hold a particular defendant liable for the range of crimes accompanying with regional ethnic cleansing in which he played some part.
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At the same time, this doctrine can be ill-treated if used by a dishonest national government to recommend that all persons who provide any sort of support to a terrorist organization, however loosely defined, become liable for all crimes committed by its members. Stated differently, the unrestrained use of joint criminal liability can pose serious dangers to the fairness of the proceedings.
In practice, JCL embodies a transfer of power from international judges to prosecutors, who have enormous discretion to decide how much offense to allocate to any particular defendant. Because the doctrine is so loose, JCL thoroughly approaches a theory of guilt by association. When used properly, Joint Criminal Liability can support in connecting participants in a criminal enterprise who operated far from the crime scene. When used selectively this view denotes the infinite possibilities for unlimited interpretations and abuses.[12]
The first such category is represented by cases where all co-defendants, acting pursuant to a common design, possess the same criminal intention; for instance, the formulation of a plan among the co-perpetrators to kill, where, in effecting this common design (and even if each co-perpetrator carries out a different role within it), they nevertheless all possess the intent to kill.[13]
References
[1]http://www.legalserviceindia.com/legal/article-2017-joint-responsibility-in-crime.html#:~:text=The%20concept%20of%20joint%20liability,were%20done%20by%20him%20alone.
[2] Section 34, The Indian Penal Code
[3] https://www.lawweb.in/2015/10/landmark-judgment-on-s-34-of-ipc
[4] Myint Soe Some Aspects of Common Intention in the Penal Code of Singapore and West Malays
[5] A.I.R. 1925 P.C. 1
[6] A.I.R. 1945 P.C. 118.
[7] [1936] M.L.J. 66
[8] 3 [1972] 2 M.L.J. 75. though it does not refer to that decision
[10] Section 120 (A), The Indian Penal Code
[11] Section 120 (B), The Indian Penal Code
[12] Joint Criminal Enterprise, New form of individual criminal responsibility, an Article by Jasmina Pjani, OKO lawyer
[13] Tadic, (Appeals Chamber), July 15, 1999, para. 195-196, 202-204