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Project Report on: -

Vicarious Liability

Submitted to: - Submitted by: -

Dr. Pushpinder Anushikha Gupta

UILS 129/14 5th semester

Panjab University B.Com. LL.B. (Hons.)

Section C
Acknowledgement

The project has been compiled by Anushikha Gupta, roll number 129/14 of 5th semester on the
topic Vicarious Liablity. Apart from the efforts of myself, the success of any project depends
largely on the encouragement and guidelines of many others. I take this opportunity to express
my gratitude to the people who have been instrumental in the successful completion of this
project. I would like to show my greatest appreciation to Dr. Pushpinder for her guidance and
support in completion of this project. I cant say thank you enough for her tremendous support
and help. I would like to thank my friends for motivating me and appreciating my work. I would
also like to thank the library staff for providing relevant materials.

Anushikha Gupta
Indian Cases

1. Allen v. Whiteland, (1930) 1 K.B. 211 ............................................................................... 5

2. Amjad Ali v. State of Assam, 2003 Cri. L.J. 3545 (S.C.) ................................................. 11

3. Aniruddha Mana, (1924) 26 Crim. L.J. 827 ..................................................................... 15

4. Arjun Thakur v. State, 1994 Crim. L.J. 3526 (Ori) .......................................................... 14

5. Barendra Kumar Ghosh, (1924) 52 IA 40 ........................................................................ 13

6. Barker v. Levinson, (1951) 1 K.B. 342............................................................................... 6

7. Centre for Public Interest Litigation v. Union of India (2012) 3 SCC 1 .......................... 17

8. Daya Kisan v. State of Haryana, A.I.R. 2010 S.C. 2147 .................................................. 12

9. Gangadhar Behera v. State of Orissa, 2003 Cri. L.J. 41 (S.C.) ........................................ 12

10. Gurdial Singh v. State of Punjab, A.I.R. 1974 S.C. 1797 ................................................. 14

11. Hardeo Singh, A.I.R. 1920 Pat. 795 ................................................................................. 11

12. Iridium India Telecom v. Motorola Incorporated and Others ("Iridium"), AIR 2011 SC 20
........................................................................................................................................... 18

13. J.K Industries Limited and Others v. Chief Inspector of Factories and Boilers and Others,
(1996) 6 SCC 665 ............................................................................................................. 19

14. Jyotish Bera v. State, 2004 Crim. L.J. 1176 (Cal.) ........................................................... 14

15. K.C. Mathew, A.I.R. 1956 S.C. 241 ................................................................................. 12

16. Lakhan Mahato v. State of Bihar, A.I.R. 1966 S.C. 1742 .................................................. 8

17. Lalji v. State of U.P., A.I.R. 199 S.C. 754 .......................................................................... 7

18. Madan Singh v. State of Bihar, 2004 Cri. L.J. 2862 (S.C.) .............................................. 10

19. Mahmood v. State of U.P., 2008 1 Cri. L.J. 696 (S.C.) ...................................................... 8

20. Maiyadin, 1973 Cri. L.J. 1203 .......................................................................................... 11

21. Mangal Singh v. State of Bihar, 2005 Cri. L.J. 3755 (S.C.) ............................................. 10
22. Meridian Global Funds Management Asia Limited v. Securities Commission, (1995) 3
All ER 918 ........................................................................................................................ 19

23. Mizaji Lal, A.I.R. 1957 S.C. 572 ........................................................................................ 9

24. Mohammed, A.I.R. 1946 Lah. 106 ................................................................................... 12

25. Musakhan v. State of Maharashtra, 1976 Cri. L.J. 1987 .................................................. 10

26. N.K. Wahi v. Shekhar Singh & Ors (2007) 9 SCC 481.................................................... 21

27. Navarro v. Moregrand Ltd., (1951) 2 T.L.R. at 681 (C.A.) ................................................ 6

28. P.C Agarwala v. Payment of Wages Inspector, AIR 2006 SC 3576 ................................ 19

29. Paran v. State of Rajasthan, 1976 Cri. L.J. 674 ................................................................ 10

30. Pinkerton v. United States, 328 U.S. 640 (1946) ................................................................ 4

31. R. v. Evening Standard, (1954) 1 Q.B. 578 ........................................................................ 5

32. R. v. Huggins, (1730) 2 Ld. Raymond 1574 : 92 E.R. 518 ................................................ 4

33. R. v. Stephens, (1866) L.R. 1 Q.B. 702 .............................................................................. 5

34. Raja Ram v. State of Bombay, A.I.R. 1958 Bom 469 ...................................................... 14

35. Ram Anjore, A.I.R. 1975 S.C. 185 ................................................................................... 11

36. Ram Chandra v. State of U.P., 1957 Crim. L.J. 270 ......................................................... 14

37. Ram Chandran and others etc. v. State of Kerala, (2011) 4 Cri. L.J. 4845 (S.C.) ............ 12

38. Ram Dular Rai v. State of Bihar, 2004 Cri. L.J. 635 (S.C.) ........................................... 8, 9

39. Ramesh v. State of Haryana, (2011) 1 Cri. L.J. 80 (S.C.) ................................................ 10

40. Ranbir Yadav v. State of Bihar, A.I.R. 1995 S.C. 1219 ..................................................... 7

41. Reg v. Sabed Ali, (1873) 11 Beng LR 347 ....................................................................... 13

42. S.M.S Pharmaceuticals Ltd. V. Neeta bhalla & Anr AIR 2005 SC 3512 ......................... 21

43. Sabitha Ramamurthy v. R.B.S. Channabasavaradhya (2006) 10 SCC 581 ...................... 21

44. Saroj Kumar Poddar v. State (NCT of Delhi) (2007) 3 SCC 693..................................... 21
45. Sher Ali v. S.K. Masud, A.I.R. 1959 Crim. L.J. 835 .......................................................... 8

46. Sindhu Gope, A.I.R. 1946 Pat. 84..................................................................................... 11

47. Sita Ram Pandey v. State of Bihar, 1976 Cri. L.J. 800 ..................................................... 10

48. Siyaram v. State of M.P., (2009) 2 Cri. L.J.2071 (S.C.) .................................................. 13

49. State of Karnataka v. Chikkahottappa, (2008) 3 Cri. L.J. 3495 (S.C.) ............................... 9

50. State of Maharashtra v. Kashirao, 2003 Crim. L.J. 4464 (S.C.) ....................................... 14

51. State of Punjab v. Sanjiv Kumar, 2007 Crim. L.J. 3519 (S.C.) .......................................... 7

52. Sukha, (1956) S.C.R. 288 ................................................................................................. 15

53. Tesco Supermarkets Limited v. Nattrass, (1971) 2 All ER 127 ....................................... 19

54. Tilkeshwar Singh v. State of Bihar, A.I.R. 1956 S.C. 238 ............................................... 14

55. Vikram v. State of Maharashtra, JT 2007 (7) SC 215 ........................................................ 7

56. Yunis v. State of Madhya Pradesh, 2003 Cri. L.J. 17 (S.C.) .............................................. 8
Table of Contents
1. INTRODUCTION ............................................................................................................... 1

2. DIFFERENCE BETWEEN VICARIOUS LIABILITYAND STRICT LAIBILITY ......... 1

3. THREE THEORIES OF VICARIOUS LIABILITY ........................................................... 2

4. VICAROUS LAIBILITY UNDER COMMON LAW ........................................................ 4

4.1. COMMON LAW EXCEPTIONS ................................................................................ 5

4.2. STATUTORY EXCEPTIONS ..................................................................................... 5

5. VICARIOUS LIABILITY UNER INDIAN PENAL CODE .............................................. 6

5.1. COMMON OBJECT: CONSTRUCTIVE CRIMINAL LIABILITY. ......................... 7

5.2. OFFENCE COMMITTED BY MEMBERS OF THE UNLAWFUL ASSEMBLY. .. 8

5.3. IN PROSECUTION OF THE COMMON OBJECT ................................................... 9

5.4. MEMBERS KNEW TO BE LIKELY. ....................................................................... 11

5.5. OVERT ACT BY ALL MEMBERS NOT NECESSARY. ....................................... 12

5.6. FIVE OR MORE PERSONS ...................................................................................... 13

6. SECTIONS 34 AND 149. .................................................................................................. 13

7. VICARIOUS LIABILITY UNDER SPECIAL STATUTES ............................................ 15

7.1. CORPORATE CRIMINAL LIABILITY ................................................................... 15

7.2. VICARIOUS LIABILITY BASED ON THE RELATIONSHIP BETWEEN THE


PARTIES .............................................................................................................................. 16

8. CONCLUSION .................................................................................................................. 17

9. CASE ANALYSIS............................................................................................................. 17

9.1. Sunil Bharti Mittal v. Central Bureau of Investigation .............................................. 17

9.2. M. Saibudeen vs Unknown on 26 September, 2016................................................... 20

9.3. Virender Kumar Aggarwal & And ... vs M/S Vip Power Projects Pvt. ..................... 20
Bibliography ................................................................................................................................. 23
1. INTRODUCTION

A person can be criminally liable for the acts of another if they are a party to the offense. For
instance, the driver of the get-away car is guilty of the armed robbery of a store even though the
driver never left the car, and the entire robbery itself was committed by others. The essence of
vicarious liability in criminal law is that a person may be held liable as the principle offender that
is the perpetrator of a crime whose actus reus is physically committed by someone else. It is
believed that person merely performing the actus reus on the say of another is not innocent and
thus is also made liable for the offence. The law sometimes focuses upon the relationship
between the defendant and the performer of the physical acts and by virtue of that relationship; it
attributes the acts of the latter to the former. It should be emphasised at the outset that this form
of liability in criminal law is very much an exception rather than the rule. The concept of
vicarious liability is mainly a civil law principle whereby an employer is made liable for the
negligence or breach of duty of his employees.

In the criminal law, however, courts and commentators use the term in several different ways.
Sometimes the term vicarious liability may be intended to refer only to cases that hold X
criminally responsible for Y's conduct based on the relationship between X and Y. Sometimes
the term may be used to describe X having liability for Y's conduct even though X was not at
fault. The term may also be used to refer to all situations in which X is held criminally liable for
Y's conduct.

Under any definition, the criminal law disfavors vicarious liability. The general rule is that one is
liable only for one's own actions and not for the actions of others. Although this general rule
against vicarious liability has some exceptions, the principle that one is criminally responsible
only for one's own actions has considerable force, influencing both legislation and judicial
decisions.

Laws that punish a defendant's own act or omission that allows another person to do something
unlawful impose direct liability, not vicarious liability, although such laws are sometimes
mislabeled. Parents, for example, sometimes face criminal liability for allowing their minor
children to use guns or automobiles or to skip school. These crimes are examples of direct
liability, not vicarious liability, because the statutes explicitly hold the parent liable for the
parent's own act (e.g., negligently storing a weapon) or omission (e.g., culpably failing to see that
a child attended school) that caused the harm, rather than for the child's conduct.

2. DIFFERENCE BETWEEN VICARIOUS LIABILITYAND STRICT LAIBILITY

Vicarious liability should also be distinguished from the closely related concept of strict liability.
Under strict liability, the defendant must engage in prohibited conduct, but the separate

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requirement that the defendant have a culpable mens reasome degree of faultis removed.
Vicarious liability, in contrast, dispenses with the requirement that the defendant engage in the
prohibited conduct, instead holding the defendant liable for the conduct of another. For example,
a law holding X liable for selling alcohol to Y, a minor, even though X reasonably believed Y
was over twenty-one, imposes strict liability. A law holding W, X's employer, liable for X's sale
to Y imposes vicarious liability. Laws can (and sometimes do) impose strict and vicarious
liability simultaneouslyfor example, a law that held W liable for X's sale to a minor even
though W and X had taken reasonable precautions to avoid such sales. However, laws can also
impose either kind of liability separately.

3. THREE THEORIES OF VICARIOUS LIABILITY

There are three theories of vicarious liability in a crime law context:

1) Criminal Conspiracy: if a person enters into conspiracy to commit a crime, that person will
be directly liable for a separate crime of conspiracy. He will also be vicariously liable for the
conspired. A party to conspiracy may also be found vicariously liable for crimes committed by
other defendants during the course of conspiracy. Such vicarious liability may be found for
crimes that are foreseeable consequences and in furtherance of the conspiracy. The following
elements are required to establish conspiracy:

Two or more persons must agree to accomplish some crime or felony.


Parties to the conspiracy must have had an intent to enter agreement.
Parties must also intend to accomplish the conspired for crime.
Modernly, there must be an "overt act" in furtherance of the conspiracy.

2) Accomplice Liability: an accomplice is someone who aids, abets, counsels, or in any way
encourages another (the "principal") to commit a crime. An accomplice may be vicariously liable
for crimes he "aided and abetted" as well as other foreseeable crimes that principal commits. The
following factors are relevant to accomplice liability:

An accomplice has to "aid and abet" with the intent that the principal commits the crime.
Further, an accomplice typically "aids and abets" before or at the time of crime.
One who provides help after commission of the crime is considered to be an "accessory
after the fact" and is not vicariously liable for the target crime.
Typically, accessory after the fact is liable directly (not vicariously) for a separate crime,
such as "obstructing justice."

Vicarious liability for accomplices and coconspirators

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Criminal responsibility for a person who intended the commission of some crime and did
something to advance its commission presents the least controversial use of vicariousliability.
Accomplices and coconspirators face such liability. If X assists Y in a burglary by serving as the
lookout while Y enters the building and steals, X is guilty of burglary, even though the burglary
was committed by Y's conduct, not X's. This sort of vicarious liability is not controversial,
however, because the accomplice both engaged in some prohibited conductsuch as aiding or
encouraging a criminal actand acted culpably with regard to the criminal actusually with the
purpose of assisting it. The basic principles of the criminal law are satisfied, and some prefer not
to categorize such liability as vicarious at all.
A more controversial application of vicarious liability occurs when an accomplice purposely aids
the commission of crime A, but the person aided also commits crime B. In many jurisdictions,
the accomplice is guilty not only of crime A, which the accomplice intentionally aided, but also
of crime B, provided that crime B was a reasonably foreseeable consequence of the conduct the
accomplice aided. Thus, the accomplice may be held liable for conduct that the accomplice did
not intend to aid. This form of liability intrudes upon the principle that ties criminal liability to
fault. Indeed, for this reason, the Model Penal Code ( 2.06(4)) and some jurisdictions that
follow it limit the liability of the accomplice for unintended crimes to the accomplice's level of
culpability for those crimes. Many jurisdictions, however, relying on the fact that the defendant
did commit an act of aiding, and had some culpability regarding the unintended crime (because it
was foreseeable) allow vicarious liability in this circumstance.

3) Vicarious Liability for Felony Murder: A person, who kills while committing a felony, is a
felon and is directly liable for murder. However, a co-felon who didn't commit the killing, will
still be vicariously liable for the murder provided that victim's death was reasonably foreseeable.
The following factors are relevant for co-felon's vicarious liability for felony murder:

The felonies which may trigger liability are usually burglary, robbery, kidnapping, rape,
arson, as well as other inherently dangerous felonies.
Commission, as well as attempt to commit, a felony during which death results triggers
liability for murder.
If death occurs after a completed felony, vicarious liability for murder may no longer
exist.

The felony murder rule presents the most controversial application of vicarious liability in the
accomplice context, at least among commentators. Under this rule, a death that results from a
felony is murder, even if the death was caused accidentally. The felony murder rule extends
liability to accomplices, so an accomplice in a felony is liable for murder if a death occurs during
the felony, even if the accomplice neither caused nor intended, nor foresaw the death. The
special controversy surrounding the felony murder rule, however, derives not so much from the
presence of vicarious liability as from the use of strict liability. The heart of the controversy lies

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in holding the conduct of the principalwhich extends vicariously to the accomplicesufficient
for murder without culpability regarding the death.

In the many jurisdictions that follow the so called Pinkerton rule, members of a conspiracy are
subject to even broader vicarious liability than accomplices. 1 Pinkerton liability makes all
members of a conspiracy liable for the crimes committed by their coconspirators that are within
the scope of the conspiracy and reasonably foreseeable consequences of it. Such liability is
particularly controversial because the coconspirator may not only lack culpability with regard to
the crime, but also may not even have committed an act to aid it. The two criminal law principles
are satisfied only to the limited extent that the coconspirator voluntarily and culpably acted by
agreeing to commit a crime that foreseeably led to the vicarious crime. Not surprisingly, a
number of jurisdictions have followed the Model Penal Code's example and the urging of many
commentators and rejected application of vicarious liability to coconspirators who would not be
liable as accomplices.

4. VICAROUS LAIBILITY UNDER COMMON LAW

The general rule is that a man must be held criminally liable for his own acts and no one can be
penalised for the act of another. But to this general rule exceptions have been found since times
immemorial. The instances of clan-feud, tribal-feud or family feud are easily traceable in the
history of mankind. The idea of punishing the entire family for the acts of any of its member and
the like may seem barbarous but is based on the principle of solidarity of guilt. Collective
responsibility rests principally upon a notion of group unity for the purpose of retaliation or
expiation.2 There are two justifications in support of this doctrine-

1. The person so made liable will prevent the commission of the crime or will help to bring
the actual offender to book.
2. The expectation that the vicarious punishment of those he holds dear will deter the
criminal himself.

The common law rule of vicarious liability was enunciated in R. v. Huggins.3 In this case Barnes
and Huggins, the Deputy Warden and Warden of Prison respectively were charged with offence
of murder of a prisoner in Fleet Street Prison by putting him in a filthy room. Barnes the Deputy
Warden had put him in the filthy room and Huggins the Warden had only seen him and turned
away. Huggins was not found guilty. It was observed that:

"Though he was a Warden, yet it being found that there was a deputy, he is not, as Warden,
guilty of acts committed under the authority of the deputy. He shall answer as superior for his
deputy, civil and not criminally.... He only is criminally punishable who immediately does the
1
Pinkerton v. United States, 328 U.S. 640 (1946).
2
Williams, G., Criminal Law, p. 275.
3
R. v. Huggins, (1730) 2 Ld. Raymond 1574 : 92 E.R. 518.

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act or permits it to be done. So that if an act is done by an under officer, unless it is done by the
command or direction, or with the consent of the principal, the principal is not criminally
punishable for it. "

Therefore the common law rule is that no person can be held vicariously liable for the wrongs
committed by someone else unless he has previously authorized or assented to the causing of the
wrong.

4.1.COMMON LAW EXCEPTIONS

There are three exceptions to the common law rule that no person is criminally liable for the act
of another unless he has authorized or assented to it.

1. Libel.--A master is liable for libel published by his servant. This rule was designed
chiefly to punish the newspaper proprietors. Later on Libel Act was passed in 1843.
Section 7 of this Act provides that the proprietor could plead the absence of knowledge or
negligence in his defense. It means he can plead that there has been no lack of due care
on his part and that the libel has been published without his authority.

2. Public Nuisance.--A master is vicariously liable for public nuisance caused by his
servants. The master cannot defend himself by showing that he expressly forbade the Act.
A duty is imposed upon the owners of the land to manage their property in such a manner
so as not to injure the rights of other men of public. A breach of this duty is punishable
criminally. In R. v. Stephens,4 the owner of a quarry was managing it through a manager.
The manager, servants and other workmen were instructed not to dump rubbish in the
river, where it would cause harm to the public generally. Inspite of these instructions they
dumped the rubbish in the river for which the owner was indicted and found guilty. It was
observed that the object of prosecution is not to punish the defendant but to prevent the
nuisance from being continued."

3. Contempt of Court-Contempt of Court is the third exception to the common law rule
against vicarious liability.5 The law relating to contempt of Court has now been modified
by Administration of Justice Act, 1960. Under section 11 of this Act the accused may
plead that neither he had knowledge nor reasons to suspect that the proceedings which
had been published were pending before the court.
4.2.STATUTORY EXCEPTIONS

Like strict responsibility, vicarious liability may also be created by statute. Vicarious liability
may, however, be inferred from the language of the statute. In Allen v. Whitehead, 6 the
defendant, an occupier and licensee of a refreshment house employed a manager for running the

4
R. v. Stephens, (1866) L.R. 1 Q.B. 702.
5
R. v. Evening Standard, (1954) 1 Q.B. 578.
6
Allen v. Whiteland, (1930) 1 K.B. 211.

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refreshment house. He used to visit it only once or twice a week. He had given express
instructions to the manager that no prostitutes were to be allowed to congregate on the premises
of the house. The manager, in spite of his instructions to the contrary, allowed some women,
whom he knew to be prostitutes, to congregate on the premises. The defendant, even though had
no personal knowledge of it, was held liable for knowingly suffering prostitutes to meet and
remain in the refreshment house.

Suppose under a statute it is an offence to serve alcohol knowingly to a minor in a bar. A private
limited company owns a bar, the management of which is left exclusively to a paid manager B.
Alcohol is freely served to all including minors by the servants of the bar, B shutting his eyes to
the practice. Accordingly alcohol was served to C a minor by a servant of the Company having
reason to believe that he was a minor, neither B nor any director of the Company knew of this
act. In this case the company as well as B would be liable for serving alcohol to the minor
against the statute because as a matter of practice alcohol was used to be served to minors within
his knowledge and he never instructed the servants to refrain from this practice. Secondly, the
manager would be liable for the acts of his servants for his failure to employ such persons only
who would act within the permissible limit of the statute.

Barker v. Levinson,7 is an important decision on the subject. This is a case on Landlord and
Tenant (Rent Control) Act, 1949. Section 2(1) of the said Act provides that no person shall, as a
condition of the grant of a tenancy require the payment of a premium. The defendant, a manager
of the owners of a flat authorized the rent collector to let one of the flats to one Mr. S. There was
no evidence that the manager authorized the rent collector to negotiate the terms of the tenancy.
The collector illegally demanded a premium. It was held that the manager could not be held
liable for the offence under section 2(1) of the Act because the collector was not acting within
the general scope of his authority. Commenting upon this case Williams has observed that, "the
distinction taken is infelicitous, for it gives the totally wrong impression that vicarious
responsibility is the same in crime as in tort.8 In Navarro v. Moregrand Ltd9, Lord Denning
commenting upon the case observes that, a master is not criminally responsible except for when
that he has expressly or impliedly authorized.

5. VICARIOUS LIABILITY UNER INDIAN PENAL CODE

IPC makes a departure from the general rule in few cases, on the principle of respondent
superior. In such a case a master is held liable under various sections of the IPC for acts
committed by his agents or servants. Section 149 provides for vicarious liability, it states that if
an offence is committed by any member of an unlawful assembly in prosecution of a common
object thereof or such as the members of that assembly knew that the offence to be likely to be

7
Barker v. Levinson, (1951) 1 K.B. 342.
8
Williams, G.; Criminal Law, (1953) p. 284.
9
Navarro v. Moregrand Ltd., (1951) 2 T.L.R. at 681 (C.A.).

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committed in prosecution of that object, every person who at the time of committing that offence
was member would be guilty of the offence committed.

5.1.COMMON OBJECT: CONSTRUCTIVE CRIMINAL LIABILITY.

Section 149, I.P.C. makes every member on an unlawful assembly at the time of committing of the
offence guilty of that offence. The section created a constructive or vicarious liability of the members of
the unlawful assembly for the unlawful acts committed pursuant to the common object by any other
member of that assembly. However, the vicarious liability of the members of the unlawful assembly
extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such
offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of
that object. Once the case of a person falls within the ingredients of the section the fact that he did nothing
with his own hands would be immaterial. He cannot put forward the defense that he did not with his own
hands commit the offence committed in prosecution of the common object of the unlawful assembly or
such as the members of the assembly knew to be likely to be committed in prosecution of that object. The
basis of the constructive guilt u/s. 149 is mere membership of the unlawful assembly with the requisite
common object or knowledge. Thus, once the Court holds that certain accused persons formed an
unlawful assembly and an offence is committed by any member of that assembly in prosecution of the
common object of that assembly, or such as the members of the assembly knew to be likely to be
committed in prosecution of that object, every person who at the time of committing of that offence was a
member of the same assembly is to be held guilty of that offence. After such a finding it would not be
open to the Court to see as to who actually did the offensive actor require the prosecution to prove which
of the members did which of the offensive acts. The prosecution would have no obligation to prove it. In
other words it is not open to the Court to acquit members of the unlawful assembly for lack of
corroboration as to their participation.10

Everyone must be taken to have intended the probable and natural results of the combination of the acts in
which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt
act. When the accused persons assembled together armed with lathis, and were parties to the assault on
the complainant party, the prosecution is not obliged to prove which specific overt act was done by which
of the accused. The section makes a member of the unlawful assembly responsible as a principal for the
acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active
participation may indicate common intention of the person perpetrating the crime, the mere presence in
the unlawful assembly may fasten vicariously criminal liability under Section 149. The basis of the
constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite
common object or knowledge.11

In a case of unlawful assembly if proof of common object is not furnished, conviction with the help of
Section 149 will not be permissible. Actually constructive liability is sine qua non for applicability of this
section. The word object means the purpose or design and in order to make it common, it must be
shared by all. The word knew used in section means that there should be positive knowledge.12 Eight
accused came together and assaulted the deceased and injured witness indiscriminately and continued

10
Lalji v. State of U.P., A.I.R. 199 S.C. 754.
11
Ranbir Yadav v. State of Bihar, A.I.R. 1995 S.C. 1219.
12
State of Punjab v. Sanjiv Kumar, 2007 Crim. L.J. 3519 (S.C.).

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assault inspite of being asked to stop. It could not be said that they did not have common object to cause
death of the deceased. Conviction u/ss. 302/ 149 was held proper.13

It is not correct to say that Section 149, I.P.C. does not constitute a substantive offence, that it was only an
enabling section for imposition of vicarious liability and the conviction on vicarious liability can,
therefore, be altered by the appellate Court to conviction for direct liability, though there was an acquittal
by the trial Court of the direct liability of the offence. There is a legal distinction between a charge under
Section 302, I.P.C. and a charge of constructive liability under Sections 302/149, I.P.C. i.e., being a
member of an unlawful assembly, the common object of which was to kill the deceased. S. 149 was
certainly not otiose, for in any case it created a specific and distinct offence. It postulated an assembly of
five or more persons having a common object, as named in. S. 141 of the. I.P.C. and then the commission
of an offence by one member of it in prosecution of that object.14 Nor It is correct to say when dealing
with an offence under Section 149, that all the persons must combine together or help one another at the
time assault.15

Section 149 incorporates the principle of vicarious liability. The section is declaratory of circumstances
under which that principle could be applied. According to the section, the liability of the members other
than the principal offender rests upon the fact whether those members knew that the offence actually
committed was likely to be committed in prosecution of its common object, the knowledge which they
had of the purpose for which an unlawful assembly was formed, the conduct of its members, the nature of
arms with which they armed themselves and whether the common object underwent any change prior to
or at the time of occurrence. If such knowledge may not reasonably be attributed to other members of the
assembly, their liability for the offence committed during an occurrence does not arise.16 This section is
not intended to subject a member of an unlawful assembly to punishment for every offence which is
committed by one of its members during the time they are engaged in the prosecution of the common
object.

5.2.OFFENCE COMMITTED BY MEMBERS OF THE UNLAWFUL ASSEMBLY.

The Supreme Court in Yunis v. State of Madhya Pradesh,17 held that presence of accused as part of
unlawful assembly is sufficient for conviction. The fact that accused was a member of unlawful assembly
and his presence at the place of occurrence has not been disputed is sufficient to hold him guilty even if
no overt act is imputed to him.

It was held in Mahmood v. State of U.P.,18 that once it is established that a person was a member of
unlawful assembly, prosecution need not establish any specific overt act to any of the accused for
fastening of liability with the aid of Section 149, I.P.C.

It was held in Ram Dular Rai v. State of Bihar,19 that mere presence in unlawful assembly cannot render a
person liable unless he was actuated by common object and that object is one of those set out in Section

13
Vikram v. State of Maharashtra, JT 2007 (7) SC 215.
14
Lakhan Mahato v. State of Bihar, A.I.R. 1966 S.C. 1742.
15
Sher Ali v. S.K. Masud, A.I.R. 1959 Crim. L.J. 835.
16
Ratanlal & Dhirajlal, The Indian Penal Code, ed. 32, p. 728.
17
Yunis v. State of Madhya Pradesh, 2003 Cri. L.J. 17 (S.C.).
18
Mahmood v. State of U.P., 2008 1 Cri. L.J. 696 (S.C.).

8|Page
141 of I.P.C, Common object is different from a common intention as it does not require prior concert
and prior meeting of minds before attack.

It was held in Ram Dular Rai v. State of Bihar,20 that a common object may be formed by express
agreement after mutual consultation but that is by no means necessary. It may be at any stage by all or a
few members of the assembly and the other members may just join and adopt it. Once formed it need not
continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in
prosecution of common object", as appearing in Section 149 have to be strictly construed as equivalent to
"in order to attain the common object." It must be immediately connected with the common object by
virtue of the nature of the object. There must be community of object and the object may exist only upto a
particular stage and not thereafter. Mere presence in an unlawful assembly cannot render a person liable
unless he was actuated by common object and that object is one of those set out in Section 141.

In State of Karnataka v. Chikkahottappa,21 it was observed that Section 149 of I.P. Code consists of two
parts. The first part of the section means that the offence to be committed in prosecution of the common
object must be one which is committed with a view to accomplish the common object. In order that the
offence may fall under the first part, the offence must be connected immediately with the common object
of the unlawful assembly of which the accused was a member. Even if the offence committed is not in
direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be
held that the offence was such as the members knew was likely to be committed and this is what is
required by the second part of the Section. The distinction between the two parts of Section 149 cannot be
ignored or obliterated. In every case it would be an issue to be determined whether the offence committed
falls within the first part or it was an offence such as the members of the assembly knew to be likely to be
committed in prosecution of the common object and falls within the second part.

In this case the accused persons allegedly formed unlawful assembly and assaulted deceased with
machus, sticks etc. There were three injuries on head and most of them were deep incised wounds of
varying sizes. Additionally multiple fractures on the base of occipital bone were noticed. Intention of
assailants as established by evidence of witnesses was to cause death of the deceased and not to cause
grievous injury. Accused persons were, therefore, held liable to be convicted under Section 302 read with
Section 149 instead of Sections 326 read with Section 149/148.

It is not necessary that the intention or the purpose which is necessary to render an assembly an unlawful
one comes into existence at the outset. The time of forming an unlawful intent is not material. An
assembly which, at its commencement, or even for sometime thereafter, is lawful, may subsequently
become unlawful. In other words it can develop during the course of incident at the spot co-instante.

5.3.IN PROSECUTION OF THE COMMON OBJECT

In order to bring a case within this section it must be proved that the act was done with a' view to
accomplish the common object of the unlawful assembly or the act though not one done in prosecution of
the common object of the unlawful assembly was one which the accused knew would be likely to be

19
Ram Dular Rai v. State of Bihar, 2004 Cri. L.J. 635 (S.C.).
20
Ram Dular Rai v. State of Bihar, 2004 Cri. L.J. 635 (S.C.).
21
State of Karnataka v. Chikkahottappa, (2008) 3 Cri. L.J. 3495 (S.C.).

9|Page
committed in prosecution of the common object.22 This section is never intended to punish a member of
an unlawful assembly for any offence committed by any member of it. What is required to punish any
member for offence committed by any other member of the assembly is that it must have been committed
in prosecution of the common object of the assembly and that the person sought to be punished must have
been a member of the assembly at the time of commission of that offence. Accordingly, it must be proved
in each case that the person concerned was not only a member of the unlawful assembly at some stage,
but shared the common object of the assembly at all the crucial stages.23 The sharing of common object
would, however, not necessarily require the member present and sharing the object to engage himself in
doing an overt act.24 Therefore, this section is inapplicable in a case of sudden mutual fight between two
parties. Constructive criminal liability in such cases cannot be imposed because of the lack of a common
object. The individual acts cannot be grouped together in such cases and the individuals are to be held
responsible for their individual acts.25

It was. held in Siyaram v. State of M.P.,26 that the expression in Prosecution of common object have to
be strictly construed as equivalent to in order to attain the common object. It may be gathered from the
course of conduct adopted by members of assembly. It was also observed that common object is different
from a common intention. It does not require a prior concert and a common meeting of minds before the
attack.

It was held in Madan Singh v. State of Bihar,27 that mere presence in an unlawful assembly cannot render
a person liable unless there was a common object and he shared the same or was actuated by that common
object and that object is one of those set out in Section 141 of I.P.C. Where common object of an
unlawful assembly is not proved, the accused persons cannot be convicted with the help of section 149.
The crucial question to determine is whether the assembly consisted of five or more persons and whether
the said persons entertained one or more of the common objects as specified in Section 141 of I.P.C. It
cannot be laid down as a general proposition of law that unless the commission of an overt act is proved
against a person, who is alleged to be a member of unlawful assembly} it cannot be said that he is a
member of an assembly. The only thing required is that he should have understood that the assembly was
unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word
"object" means the purpose or design and, in order to make it "common" it must be shared by all. In other
words, the object should be common to the persons, who compose the assembly, that is to say, they
should all be aware of it and concur in it.

In Mangal Singh v. State of Bihar,28 the incident happened because of Iand dispute. Accused party fired
at the deceased party after exchange of Words. Many members except two of accused party were armed
with fire arms. Those two members who were unarmed had not committed any overt act Eye-witnesses
did not say that any exhortation was given by them. Therefore, these two cannot be said to have shared
common object of assembly and as Such they cannot be convicted. The Supreme Court held the
conviction of other members of the accused party proper.

22
Mizaji Lal, A.I.R. 1957 S.C. 572.
23
Musakhan v. State of Maharashtra, 1976 Cri. L.J. 1987.
24
Sita Ram Pandey v. State of Bihar, 1976 Cri. L.J. 800.
25
Paran v. State of Rajasthan, 1976 Cri. L.J. 674.
26
Siyaram v. State of M.P., (2009) 2 Cri. L.J. 2071 (S.C.).
27
Madan Singh v. State of Bihar, 2004 Cri. L.J. 2862 (S.C.).
28
Mangal Singh v. State of Bihar, 2005 Cri. L.J. 3755 (S.C.).

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In Ramesh v. State of Haryana,29 appellants who were variously armed including firearms assembled at
one place and thereafter came to place of occurrence and started assault together. When deceased
protested, one of the members of unlawful assembly shot him dead and some of them caused injury by
fire arms, gandasa, lathi etc. to others. All of them had come and left place of occurrences together. It was
held that appellants are members of unlawful assembly and offences have been committed in pursuance
of common object. Hence each of them was liable for offence committed by any other member of
assembly. They are guilty with the aid of section 149 I.P. Code.

In Amjad Ali v. State of Assam30 on 3-8-1989 at about 4 pm. when three persons namely, Tara Mia, Saket
Ali and Owaz Khan were fishing in the Dhameswari jheel, the accused 26 in number armed with sticks,
spears and other deadly weapons attacked those persons inflicting serious injuries resulting in their death
and thereafter dragged the dead bodies and threw them in the river. At the time of occurrence, hue and cry
was also said to have been raised attracting crowd, which included Manowara Begum and Hussain Mia.
The accused attacked even these two and caused injuries on their person. In the FIR twenty-four persons
were named and the others were not named. One of them died during pendency of trial. In all eleven
witnesses were examined by the prosecution. There were faction ridden groups over exercise of right to
fish. The eye witnesses were from around that place of occurrence. Dead bodies of two deceased were
recovered after 2/3 days and that of the third one was not recovered.

It was held that it is incorrect to claim that prior formation of an unlawful assembly with a common object
is a must and should have been found as a condition precedent before roping the accused within the fold
of section 149 Indian Penal Code. No doubt the offence committed must be shown to be immediately
connected with the common object, but whether they have the common object to cause the murder in a
given case would depend and can rightly be decided on the basis of any proved rivalry between two
factions, the nature of weapons used, the manner of attack as well as all surrounding circumstances.
Common object has always been considered to be different from common intention and that it does not
require prior concert and common meeting of minds before the attack. Common object could develop co
instanti and being a question of fact it can always be inferred and deduced from the facts and
circumstances projected and proved in a given case.

In the present case the assailants formed an unlawful assembly and their common object was to kill the
three deceased because of dispute relating to fishing. In any case, the common object must have
developed co instante, i.e., on the spot.31

5.4.MEMBERS KNEW TO BE LIKELY.

The second part relates to a situation where the members of the assembly knew that the offence is likely
to be committed in prosecution of the common object. A thing is likely to happen only when it will
probably happen or may very well happen.32 The word knew indicates a state of mind at the time of
commission of an offence and not later.33 Knowledge must be proved.34 The word "likely" means some

29
Ramesh v. State of Haryana, (2011) 1 Cri. L.J. 80 (S.C.).
30
Amjad Ali v. State of Assam, 2003 Cri. L.J. 3545 (S.C.).
31
Amjad Ali v. State of Assam, 2003 Cri. L.J. 3545 (S.C.).
32
Ram Anjore, A.I.R. 1975 S.C. 185.
33
Sindhu Gope, A.I.R. 1946 Pat. 84.
34
Hardeo Singh, A.I.R. 1920 Pat. 795.

11 | P a g e
clear evidence that the unlawful assembly had such knowledge.35The prosecution must prove that the
accused not only knew that the offence was likely to be committed but also that it was likely to be
committed in prosecution of the common object of the assembly.36

In KC. Mathew,37 people gathered at dead of night armed with crackers choppers and sticks to rescue
persons who were guarded by armed police. It was held that they must have known that murder will be
committed and a conviction for murder-cum-rioting was justified.

It was held in Gangadhar Behera v. State of Orissa,38 that the expression in prosecution of common
object as appearing in section 149 has to be strictly construed as equivalent to in order to attain the
common object. It must be immediately connected with the common object by virtue of nature of the
object. There must be community of object and the object may exist only upto a particular stage and not
thereafter.

The word knew used in the second branch of the section implies something more than a possibility and
it cannot be made to bear the sense of might have been known, positive knowledge is necessary.

5.5.OVERT ACT BY ALL MEMBERS NOT NECESSARY.

In Ram Chandran and others etc. v. State of Kerala,39 seventeen accused gathered at the residence of
accused no. 1, waited for appropriate time knowing it well that injured witness would return from temple.
Immediately after seeing him accused No. 1 shouted "chase him, "chase him". Before injured witness
could enter the house, he was inflicted injury by accused No. 1 with sword stick. Accused appellants
broke open door and caused injuries of very serious nature to him and left him under impression that he
had died. Accused were having one sword stick, two choppers, one knife and twelve iron rods. All these
weapons were used by them for committing offences and causing injuries to victims. Deceased received
as many as 34 injuries. Circumstances show that appellants had participated to prosecute a common
object.

It was held that in this case offence was committed by a member of unlawful assembly though not in
prosecution of common object yet can fall under second part of section 149 I.P.C. if it can be held that
offence was such as members knew was likely to be committed. Expression know does not means a
mere possibility, such as might or might not happen.

However, once it is established that the unlawful assembly had common object, it is not necessary that all
persons forming the unlawful assembly must be shown to have committed some overt act. For the
purpose of incurring the vicarious liability under the provision, the liability of other members of the
unlawful assembly for the offence committed during the occurrence rests upon the fact whether the other
members knew before hand that the offence actually committed was likely to be committed in prosecution
of the common object.40

35
Maiyadin, 1973 Cri. L.J. 1203.
36
Mohammed, A.I.R. 1946 Lah. 106.
37
K.C. Mathew, A.I.R. 1956 S.C. 241.
38
Gangadhar Behera v. State of Orissa, 2003 Cri. L.J. 41 (S.C.).
39
Ram Chandran and others etc. v. State of Kerala, (2011) 4 Cri. L.J. 4845 (S.C.).
40
See also Daya Kisan v. State of Haryana, A.I.R. 2010 S.C. 2147.

12 | P a g e
It was also held that in case of an offence committed by a member of unlawful assembly common object
may form on the spur of moment. Prior concert in the sense of meeting of members of unlawful assembly
is not necessary; it is enough if it is adopted.

It was held in Siyaram v. State of M.P.,41 that in order to hold a person liable under Section 149 IPC a
person alleged to be member of unlawful assembly should have understood that assembly was unlawful
and was likely to commit any act. Mere presence in an unlawful assembly cannot render a person liable
unless there was a common object and he was actuated by that common object. The word common
object under this section means the purpose or design. In order to make it common, it must be shared by
all. Unlawful assembly may be formed at any stage by all or a few members of the assembly and other
members may join and adopt it. Members of an unlawful assembly may have community of object upto a
certain point beyond which they may differ in their objects.

It was also pointed out that it is not necessary that intention or purpose which is necessary to render an
assembly an unlawful one comes into existence at the outset. Time of forming an unlawful intent is not
material.

5.6.FIVE OR MORE PERSONS

For the application of this section it is essential to prove that there were at least five persons sharing the
common object. The presence of five or more persons must be unquestionably proved although it may
happen that some of them are unidentifiable or that their identity was doubtful. In such cases even less
than five persons may be convicted? But if it is doubtful that there were at least five persons no
conviction is possible under this section. Once it is shown that an offence has been committed by some
members of an unlawful assembly in prosecution of the common object then whether the principal
offender has been convicted for that offence or not, the other members may be punished provided they
are found to have had the necessary intention or knowledge.

6. SECTIONS 34 AND 149.

Section 149 is wider than S. 34. In it the joint liability is founded on Common object; in S. 34, on
common intention. Both sections deal with liability for constructive criminality, i.e., liability, for an
offence not committed by the person charged. Section 149 ..... creates a specific offence and deals with
the punishment of that offence alone. It postulates an assembly of five or more persons having a common
object-a-namely, one of those named in S. 141 : Reg v. Sabed Ali,42 and then the doing of acts by
members of it in prosecution of that object. There is a difference between object and intention, for though
their object is common, the intentions of the several members may differ and indeed may be similar only
in respect that they are all unlawful, while the element of participation in action, which is the leading
feature of S. 34, is replaced in S. 149 by membership of the assembly at the time of the committing of the
offence. Both sections deal with combinations of persons, who become punishable as sharers in an
offence. Thus they have a certain resemblance and may to some extent overlap, but S. 149 cannot at any
rate relegate S. 34 to the position of dealing only with joint action by the commission of identically

41
Siyaram v. State of M.P., (2009) 2 Cri. L.J.2071 (S.C.).
42
Reg v. Sabed Ali, (1873) 11 Beng LR 347.

13 | P a g e
similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all. 43 Section
34 refers to cases in which several persons together intend to do an act; it does not refer to cases where
several persons intend to do an act and some one or more of them do an entirely different act. The basis of
constructive guilt under Section 149 is mere membership of an unlawful assembly, whereas under S. 34,
it is participation in some action with the common intention of committing a crime. In order to apply S.
34 the criminal act must have been done by all the accused in furtherance of their common intention,
whereas for the application of S. 149, it is not necessary that all the accused must have committed the
criminal act. In a case under S. 149 if the accused is a member of an unlawful assembly the common
object of which is to commit a certain crime, and that crime is committed by one or more of the members
of that assembly, every person who happened to be a member of that assembly would be liable for that
criminal act by virtue of his being a member of it, irrespective of the fact whether he actually committed
the criminal act or not. In view of the fact that there is a difference between the provisions of Sections 34
and 149, I.P.C. the decision in a case under S. 149, I.P.C. will not be of any application to a case under S.
34, I.P.C.44 Both Sections 149 & 34 relate to vicarious or collective liability and surfacially involve some
amount of resemblance and overlapping. Section 34 is restricted to common intention and does not
embrace any knowledge. Under Section 149 it is the knowledge which is necessary to attract the
culpability.45 It has been held by Supreme Court that common object of unlawful assembly is different
from common intention as it can develop during course of incident at the spot co instante. The meaning of
prosecution of common object is attainment of common object and object means purpose or design and in
order to make it common it must be shared by all and no proof of overt act is necessary.46 The conviction
of accused was altered by High Court from u/s. 302/34 to one u/s. 326/149 and it was contended that it
was unjustified as High Court had no such powers. It was held that High Court had such Powers.47

The common object of the accused was either to murder or injure the deceased or witnesses, none of
whom were initially involved in the incident of rescuing D from her father-in-laws house. This fact was
however neither proved nor established. Those persons merely joined the other villagers in trying to stop
the accused from taking away the deceased and it was at that stage that accused fired three shots. It was
held that none of the other accused could be held liable u/s. 307/ 149.48 The co-accused had strained
relations with deceased and it was held that this alone could not be basis for conviction of accused even if
he had absconded immediately after the crime was committed.49

To attract the operation of Section 34, Penal Code and for constructive guilt on each of the several
accused under that section, there must be participation in action, with a common intention, although the
different accused might have taken different parts; and unlike under Section 149, before any of them can
be convicted for an offence read with Section 34, 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 finding
is illegal.50 A common object is different from a common intention in that it does not require prior concert

43
Barendra Kumar Ghosh, (1924) 52 IA 40.
44
Ram Chandra v. State of U.P., 1957 Crim. L.J. 270.
45
Arjun Thakur v. State, 1994 Crim. L.J. 3526 (Ori).
46
State of Maharashtra v. Kashirao, 2003 Crim. L.J. 4464 (S.C.).
47
Tilkeshwar Singh v. State of Bihar, A.I.R. 1956 S.C. 238.
48
Gurdial Singh v. State of Punjab, A.I.R. 1974 S.C. 1797.
49
Jyotish Bera v. State, 2004 Crim. L.J. 1176 (Cal.).
50
Raja Ram v. State of Bombay, A.I.R. 1958 Bom 469.

14 | P a g e
and a common meeting of minds before the attack, and an unlawful object can develop after the people
get there. The distinction between the common intention required by S. 34 and common object set out in
S. 149 lies just there. In a case under S. 149 there need not be a prior meeting of minds. It is enough that
each has the same object in view and that their number is five or more and that they act as an assembly to
achieve that object.51 Section 34 of the Penal Code refers to cases in which several persons both do an act
and intend to do that act: it does not refer to cases where several persons intend to do an act and some one
or more of them do an entirely different act. In the latter class of cases. S. 149 of the Code may be
applicable but S. 34 is not.52 On the other hand, if five or more persons both do an act and intend to do it,
both S. 34 and S. 149, may apply, since the term member in the singular includes the plural also (S. 9).
Section 154 holds owners or occupiers of land, or persons having or claiming an interest in land,
criminally liable for intentional failure of their servants or managers in giving information to the
public authorities, or in taking adequate measures to stop the occurrence of an unlawful assembly
or riot on their land. The liability on the owners or occupiers of land has been fixed on the
assumption that such persons, by virtue of their position as land-holders, possess the power of
controlling and regulating such type of gatherings on their property, and to disperse if the object
of such gatherings becomes illegal.
Section 155 fixes vicarious liability on the owners or occupiers of land or persons claiming
interest in land, for the acts or omissions of their managers or agents, if a riot takes place or an
unlawful assembly is held in the interest of such class of persons.
Section 156 imposes personal liability on the managers or the agents of such owners or occupiers
of property on whose land a riot or an unlawful assembly is committed. Section 268 and 269
explicitly deals with public nuisance. Under this section a master is made vicariously liable for
the public nuisance committed by servant. Section 499 makes a master vicariously liable for
publication of a libel by his servant. Defamation is an offence under this section.

7. VICARIOUS LIABILITY UNDER SPECIAL STATUTES

The doctrine of vicarious liability is more frequently invoked under special enactments, such as
Defence of India Rules 1962, The India Army Act 1911, The Prevention of Food Adulteration
Act 1954, The Drugs Act 1940, etc. A master is held criminally liable for the violation of rules
contained under the aforesaid statutes, provided that his agent or servant, during the course of
employment, committed such act. In Sarjoo Prasad v. State of Uttar Pradesh , the appellant,
who was an employee, was convicted under the Prevention of Food Adulteration Act 1954 for
the act of the master in selling adulterated oil.

7.1.CORPORATE CRIMINAL LIABILITY

At common law, the general rule that criminal liability had to be personal rather than vicarious
prevented corporations from being held criminally liable, since a corporation could not itself
engage in a physical act. Beginning in the latter half of the nineteenth century, however, such
limitations were gradually eliminated. Under modern statutes, corporations face vicarious

51
Sukha, (1956) S.C.R. 288.
52
Aniruddha Mana, (1924) 26 Crim. L.J. 827.

15 | P a g e
liability for the criminal conduct of certain employees, although the wisdom, fairness and scope
of such liability remain controversial. Relying on the fiction that the acts of the employee are the
acts of the corporation, some defend such liability as direct rather than vicarious. More
persuasively, some consider vicarious liability for corporations a justifiable departure from the
basic principles because the penalties involve only fines rather than imprisonment and send less
of a message of moral condemnation. Furthermore, it is argued, the corporation is not a true
person, and the people most directly affected, the shareholders, suffer losses more akin to civil
than criminal penalties.

The Supreme Court recently in Sunil Bharti Mittal v. Central Bureau of Investigation ("CBI")
and Others1 has held that the principle of alter ego can only be applied to make the company
liable for an act committed by a person or group of persons who control the affairs of the
company as they represent the alter ego of the company; however it cannot be applied in reverse
direction to make the directors of the company liable for an offence committed by the company.
The Supreme Court has clarified that the application of the principle of vicarious liability to
make the directors of the company liable for an offence committed by the company can only be
done if the statute provides for it. While doing so, the Court has set aside the order of the Special
Court wherein the Special Court had issued summons to the directors of the companies by stating
that they represent the alter ego of the companies.

7.2.VICARIOUS LIABILITY BASED ON THE RELATIONSHIP BETWEEN THE


PARTIES

In vicarious liability's most controversial form, the law convicts one person for the conduct of
another based solely on their relationship. With the exceptions of the crimes of nuisance and
libel, such liability was unknown at common law. In the twentieth century, however, this type of
vicarious criminal liability, almost always in the form of an employer being held liable for the
acts of an employee, became more common, particularly in the context of so-called regulatory
crimes, which are designed to regulate businesses and usually entail misdemeanor punishments
only. Examples include liability for employers based on the conduct of employees who mislabel
drugs, sell alcohol to minors, or hire underage workers, even when such conduct runs against the
employer's orders. In this context, vicarious liability is often imposed in conjunction with strict
liabilitythe employee may be convicted for mislabeling the drugs without a showing of mental
fault (strict liability) and the employer may be convicted for the mislabeling by the employee
solely on the basis of the employer-employee relationship (vicarious liability).

Advocates of this kind of vicarious liability make arguments similar to those used to support
strict liability. They contend that it makes employers more careful in choosing and managing
their employees. They argue further that without such liability employers who encourage
wrongful conduct will escape punishment because their authorization will be difficult to prove.

16 | P a g e
Another argument is that the broad societal harm avoided by such regulatory crimes outweighs
any injustice to the "innocent" employer held vicariously liable for the employee's conduct,
particularly because the penalties imposed are usually light and often involve only fines
(although in many jurisdictions employers face at least the theoretical possibility of
imprisonment).

Opponents of vicarious liability, however, insist on the two basic principles set out earlier:
individuals should be criminally responsible only for their own actions, and there should be no
criminal liability without fault. This form of vicarious liability, they argue, directly contradicts
such principles and should be precluded. The Model Penal Code adopts this view, prohibiting
vicarious liability outside of the complicity and corporate liability contexts.

8. CONCLUSION

As a general rule, the criminal law does not employ vicarious liability. Such liability would often
run afoul of basic precepts that require an actus reus and fault for criminal responsibility.
Although vicarious liability is employed in limited circumstances, its wisdom and
constitutionality are open to question when its use creates too extreme an affront to these
principles.

9. CASE ANALYSIS

9.1.SUNIL BHARTI MITTAL V. CENTRAL BUREAU OF INVESTIGATION

The Supreme Court recently in Sunil Bharti Mittal v. Central Bureau of Investigation ("CBI")
and Others1 has held that the principle of alter ego can only be applied to make the company
liable for an act committed by a person or group of persons who control the affairs of the
company as they represent the alter ego of the company; however it cannot be applied in reverse
direction to make the directors of the company liable for an offence committed by the company.
The Supreme Court has clarified that the application of the principle of vicarious liability to
make the directors of the company liable for an offence committed by the company can only be
done if the statute provides for it. While doing so, the Court has set aside the order of the Special
Court wherein the Special Court had issued summons to the directors of the companies by stating
that they represent the alter ego of the companies.

1. BACKGROUND AND FACTUAL MATRIX

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As per the directions of the Supreme Court in Centre for Public Interest Litigation v. Union of
India53 dated December 16, 2010, CBI conducted investigation into various irregularities in grant
of licenses and allocation of spectrum in the 2G band and filed a charge-sheet before the Special
Judge. CBI named Mr. Shyamal Ghosh and three companies namely M/s Bharti Cellular
Limited, M/s Hutchison Max Telecom (P) Limited and M/s Sterling Cellular Limited as the
accused persons in respect of offences under Section 13 (2) read with Section 13 (1) (d) of the
Prevention of Corruption Act, 1988 and allied offences.

The Special Judge vide an order dated March 19, 2013 directed that the summons be issued to
the three companies. At the same time, the Special Judge also directed that the summons be
issued to (i) Mr. Sunil Bharti Mittal (Chairman cum Managing Director of Bharti Cellular
Limited), (ii) Mr. Asim Ghosh (Managing Director of Hutchison Max Telecom (P) Limited) and
(iii) Mr. Ravi Ruia (Director Chairman of Sterling Cellular Ltd.). The Special Judge held that
in light of the capacity in which these directors acted, they can be considered as the persons
controlling the affairs of the company and the directing mind and will of the respective
companies. The learned Special Judge observed that these persons can be considered to be the
alter ego of their respective companies and the acts of the companies are to be attributed and
imputed to them. This order for issuance of summons passed by the learned Special Judge was
challenged in the Supreme Court.

2. ISSUES
I. Whether the principle of attribution/alter ego can be applied to make the directors of the
company liable for an offence committed by the company?
II. When can a director/person in charge of the affairs of the company be prosecuted for an
offence committed by the company?

3. JUDGMENT AND JUDICIAL REASONING

The three-judge bench of the Supreme Court speaking through AK Sikri J. struck down the
summons issued by of the Special Court and held that the Special Court had erroneously applied
the doctrine of alter ego to implicate the directors of the companies for offences committed by
the companies.

The Supreme Court relied on its decision in Iridium India Telecom v. Motorola Incorporated and
Others ("Iridium")54 wherein the court had dealt with the question of whether a company could
be prosecuted for an offence which requires mens rea i.e. guilty mind. In the Iridium case, it was

53
Centre for Public Interest Litigation v. Union of India (2012) 3 SCC 1.
54
Iridium India Telecom v. Motorola Incorporated and Others ("Iridium"), AIR 2011 SC 20.

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held that the companies and corporate houses can no longer claim immunity from criminal
prosecution on the ground that they are incapable of possessing the mens rea for the commission
of criminal offences. The criminal intent of the alter ego of the company/body corporate i.e. the
persons or group of persons in control of the affairs of the company or who guide the business of
the company, would be imputed to the corporation. However, the Court noted here that the
principal is applied to impute criminal intention to the company on account of criminal intention
of its alter ego and not the other way round. The Court thus held that the principle of attribution
cannot be applied in the reverse scenario to make the directors liable for offences committed by
the company.

The Court thereafter observes that in the following circumstances a director/person in charge of
the affairs of the company can also be prosecuted, along with the company as an accused:

1. If there is sufficient evidence of his active role coupled with criminal intent;
2. Where the statute specifically imposes liability.

On the first aspect, the court held that the Special Judge has not satisfied himself that sufficient
incriminating material was present on record to proceed against the directors. The Court however
left it open for the Special Judge to examine the material on record to ascertain if sufficient
incriminating material exists to proceed against the directors.

With reference to the second aspect, the court notes that it is a cardinal principle of criminal
jurisprudence that there is no vicarious liability unless the statute specifically provides for it.
Therefore, when the company is the offender, vicarious liability of the directors cannot be
imputed automatically in the absence of any statutory provision to that effect.

4. ANALYSIS

The Court relied upon the decision of the House of Lords in Tesco Supermarkets Limited v.
Nattrass55 ("Tesco"), wherein it was held that the person whose mens rea is to be attributed must
be the directing mind and will of the company. Interestingly, the Privy Council in a subsequent
judgment in Meridian Global Funds Management Asia Limited v. Securities Commission56
("Meridian") has expanded the rule laid down in Tesco by holding that, "the company builds
upon the primary rules of attribution by using general rules of which are equally available to all
natural persons, namely, the principles of agency" thereby making the rules of attribution a more
flexible one to be decided on a case to case basis.

The decision of Tesco has been referred by the earlier division bench decisions of the Supreme
Court in J.K Industries Limited and Others v. Chief Inspector of Factories and Boilers and

55
Tesco Supermarkets Limited v. Nattrass, (1971) 2 All ER 127.
56
Meridian Global Funds Management Asia Limited v. Securities Commission, (1995) 3 All ER 918.

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Others57 and P.C Agarwala v. Payment of Wages Inspector 58, M.P and Others wherein it has
been held that in the context of vicarious liability under strict liability statutes, a person in charge
would be deemed to be responsible for the acts of the company.

9.2.M. SAIBUDEEN V. UNKNOWN ON 26 SEPTEMBER, 2016

1. FACTS OF THE CASE

In this case the petitioner was a proprietor of M/s. Majestic Impex and he had Import-Export
Code (IEC) bearing No.0140010961, dated 22.06.2010 and ODS license bearing No.0450000720
dated 27.04.2010. The other two accused were referred in the judgment as A2 & A4 who were
M. Saibudeens (petitioner) brother-in-law. Petitioner had executed a power of attorney in favor
of the 2nd accused, his brother-in-law. But, by taking advantage of the said Power of Attorney,
the 2nd accused along with the 4th accused conspired and started importing electronic goods
such as Air Conditioners, Music Systems, Pioneer DVD etc., from M/s.Super Soft Pvt. Ltd.,
Singapore. The petitioner had only executed a Power of Attorney in favor of the 2nd accused
appointing him as his agent for doing lawful business and besides that there is no agreement for
doing any criminal act. The petitioner was held vicariously liable for the acts of A2 and A4 as he
under Prevention of Corruption Act.

2. HOLDING

It was held that petitioner could not be held liable for the criminal acts of A2 and A4 as the only
reason given by the prosecution counsel was that he executed power of attorney in favor of the
accused A2 and A4. There was no other concrete proof to prove petitioners involvement in the
criminal act. Also, the said act of petitioner which is of executing the power of attorney can only
give birth to civil liability on his part. The reason given was plain that the agreement executed by
him in the favor of other two accused were of doing a lawful business and prosecution lacked
evidence to prove his any other kind of involvement in the criminal act. Also there was no proof
to show that the petitioner in any way was benefitted by the said criminal act.

9.3.VIRENDER KUMAR AGGARWAL & AND ... V. M/S VIP POWER PROJECTS PVT.

1. FACTS OF THE CASE

The petitioners filed the case to fasten criminal liability under Section 138 of the Negotiable
Instruments Act as the amount of Rs. 87 lacs remained unpaid by the accused persons. The
complainant/ respondent company had entered into an agreement with the accused company with
regard to sale/ purchase of certain land. One of the accused Sh. Himanshu Aggarwal, director,

57
J.K Industries Limited and Others v. Chief Inspector of Factories and Boilers and Others, (1996) 6 SCC 665.
58
P.C Agarwala v. Payment of Wages Inspector, AIR 2006 SC 3576.

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was empowered to deal with the complainant/ respondent company on behalf of the accused
company vide board resolution dated 16.07.2009. The accused company issued a cheque of Rs.
87 Lacs vide cheque number 726379 dated 15.02.2011 drawn on Punjab National Bank, to the
respondent/ complainant company towards discharge of its liability. The aforesaid cheque was
presented by the complainant/ respondent company on 17.02.2011 with its banker, which was
returned unpaid by the banker citing the reason of "insufficient funds".

First issue which was raised by the counsel for petitioner was that there have to be specific
averments or allegations in the complaint showing the accused named therein was in-charge and
responsible for the day-to-day affairs of the accused company.

In the present case, there were mere bald allegations, that the petitioners who were directors of
the company should be held vicariously liable but there was nothing concrete to showcase this
fact, that the directors of the company were in-charge and responsible for the day-to-day affairs
of the accused company and also no role has been attributed to them in the alleged transaction
between the complainant/ respondent company and the accused company. Reliance had been
placed on S.M.S Pharmaceuticals Ltd. V. Neeta bhalla & Anr59, Sabitha Ramamurthy v. R.B.S.
Channabasavaradhya60, Saroj Kumar Poddar v. State (NCT of Delhi)61, N.K. Wahi v. Shekhar
Singh & Ors62 in support of the contentions.

The counsel further alleged that Sh. Himanshu Aggarwal, Director, was duly authorized by the
accused company vide board resolution dated 16.07.2009 to deal with the complainant/
respondent company. The complaint also discloses the fact that all correspondence and
communication, on behalf of the accused company, with the complainant/ respondent company
was done by Sh. Himanshu Aggarwal, who is currently facing trial. Relying upon SMS
Pharmaceuticals v. Neeta Bhalla63, it was submitted that mere signing of a board resolution by a
director does not infer vicarious criminal liability under the Act. It was further submitted that the
petitioners herein were not signatories to the dishonored cheques.

2. HOLDING

It was held in this case that the vicarious liability cannot be inferred, it has to be proved. Bald
and cursory allegations in the complaint cannot be allowed to fasten vicarious criminal liability
on a person. Merely being the director of the accused company is not sufficient to confer
vicarious criminal liability on the director under Section 141 of the Act. As observed in a catena
of Supreme Court Judgments, the provisions conferring vicarious liability on a person have to be
construed and interpreted strictly.
59
S.M.S Pharmaceuticals Ltd. V. Neeta bhalla & Anr AIR 2005 SC 3512.
60
Sabitha Ramamurthy v. R.B.S. Channabasavaradhya (2006) 10 SCC 581.
61
Saroj Kumar Poddar v. State (NCT of Delhi) (2007) 3 SCC 693.
62
N.K. Wahi v. Shekhar Singh & Ors, (2007) 9 SCC 481.
63
SMS Pharmaceuticals v. Neeta Bhalla, (2007) 4 SCC 70.

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BIBLIOGRAPHY

Books

Ratanlal & Dhirajlal, THE INDIAN PENAL CODE, Lexis Nexis (32nd ed. 2013)
S.N. Mishra, INDIAN PENAL CODE, Central Law Publications (20th ed. 2016)
K.D. Gaur, COMMENTARY ON THE INDIAN PENAL CODE, Universal Law
Publication (2nd ed. 2013)
T. Bhattacharya, THE INDIAN PENAL CODE, 1860 Central Law Agency (6th ed.
1994)

K.N. Chandrashekhar & Pillai, ESSAY ON INDIAN PENAL CODE, 1860 Universal
Law Publication (2012)

Websites
http://www.manupatra.com

http://www.indiankanoon.com

http://www.hanumant.com

http://legal-dictionary.thefreedictionary.com

http://www.legalservicesindia.com

http://legalsutra.com

http://www.lawyersclubindia.com

http://www.lawctopus.com/academike/vicarious-liability-in-criminal-law/

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http://www.mondaq.com/india/x/372090/Corporate+Crime/Corporate+Criminal+L
iability+Principles+Of+Attribution+And+Vicarious+Liability+Clarified

https://indiankanoon.org/docfragment/40567810/?formInput=vicarious%20crimina
l%20liability%20

http://www.legalmatch.com/law-library/article/vicarious-liability-in-criminal-
law.html

http://www.encyclopedia.com/social-sciences-and-law/law/law/vicarious-liability

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