Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY

Lucknow

Faculty of Law

“Civil & Criminal Case study”

Submitted by

[Ashwani Singh]

Academic Session: 2018-19

Under the Guidance of

Dr. Gulaab Rai

Faculty for Law
Dr. Shakuntala Misra National Rehabilitation University

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Civil Case
(Ansal Engineering Projects Ltd. vs.
Tehri Hydro Development)

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 CONTENTS

CHAPTER PARTICULARS PAGE

NUMBER NUMBER
1 Introduction 3
2 Types of Guarantee 5
3 Statutory analysis 6
4 Judiciary analysis 6-11
Case law:
Ansal Engineering Projects Ltd. vs. Tehri Hydro
Development
5 Conclusion 11
6 Bibliography 12

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 1. Introduction:

A contract of guarantee is a contract to perform the promise, or discharge the liability of a third
person in case of his default

The person who gives the guarantee is called the ‘surety’ the person in respect of whose
default the guarantee is given is called the ‘principal debtor’ and the person to whom the
guarantee is given is called the ‘creditor’. A guarantee may be either oral or written (Sec 126). It
may be express or implied. To invoke contract of guarantee, default must be committed by the
third person on whose behalf a person stands surety. The contract of guarantee is also known as
the contract of ‘suretyship’.

Business owners know it is very difficult to borrow money for the business from a creditor
without a personal guarantee even if the creditor has security against all of the business. If you
sign the typical standard guarantee form used by creditors, you may be giving up rights designed
to level the field. Some terms of the creditor guarantee are not in your best interest. .

But what is a guarantee, what defences do you as a guarantor have and what are your rights? If
you must pay under the guarantee, can you recover the money and how? Before you sign a
guarantee, whether to support your business, or to help a relative or friend, you should know the
answers to these questions. You should also consult a qualified lawyer to make sure the
guarantee is not any broader than absolutely necessary.

A guarantee is a contract between the guarantor (the person that gives the guarantee) and the
creditor (typically the creditor that makes the loan). As a contract, it must meet the essential
conditions required to form a valid and enforceable contract. There must be certainty of the terms
of the guarantee: what is the extent of the guarantee, when can the creditor call for performance
under the guarantee, and how can it be revoked.

There must be some consideration for the guarantee as with all contracts. Usually this is the loan
made to the business. It could also be an agreement to hold off taking some action that the
creditor is otherwise entitled to take, or allowing more time for the business to meet its
obligations to the creditor under the existing arrangements. The amount or nature of the
consideration does not matter as long as there is some consideration.

The guarantee is normally in written and signed by the guarantor. But a guarantee can be
enforceable even if it is not in writing; the guarantee could be implied from the conduct of the
parties such as a partial payment after a promise relied upon by the creditor to provide credit to
the debtor.

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2. Types of guarantee:
Continuing guarantee: A guarantee which extends to a series of transaction is called
“Continuing Guarantee”.

Illustration: A, in consideration that B will employ C in collecting the rents of B’s Zamindari,
promises B to be responsible to the amount of Rs.5000, for the due collection and payment by C
of those rents. This is a Continuing Guarantee.

 Revocation of continuing guarantee:

1. By notice: (Sec.131) A continuing guarantee may at any time be revoked by the surety, as to
future transactions, by notice to creditor

2. By death of surety: (Sec.131) In the absence of any contract to the contrary, death of surety
operates as revocation of continuing guarantee, so as far as regards future transactions.

3. By discharge of surety: Continuing guarantee is also revoked when the surety is discharged in
any of the following ways:

 By variance in the terms of contract: (Sec 133) any variance, made without the surety’s
consent in the terms of the contract between the principal debtor and the creditor,
discharges the surety as to transactions subsequent to the variance.
 By release or discharge of principal debtor: (Sec 134) The surety is discharged by any
contract between the creditor and the principal debtor, by which the principal debtor is
released or by any act or omission of the creditor, the legal consequence of which is the
discharge of the principal debtor.
 By creditor compounding with the principal debtor: A contract between the creditor s and
the principal debtor, by which the creditor makes a composition with, or promises to give
time to, or not to sue the principal debtor discharge the surety unless the surety assents to
such contract.
 By creditor’s act or omission impairing surety’s eventual remedy: (Sec 139) If the
creditor does any act which is inconsistent with the rights of the surety, or omits to do any
act which his duty to the surety requires him to do, and the eventual remedy of the surety
himself against the principal debtor is thereby impaired, the surety is discharged.
 By creditor losing security against the principal debtor: (Sec 141) If the creditor loses or,
without the consent of the surety, parts with the security he has against the principal
debtor at the time when the contract of surety ship is entered into, the surety is discharged
to the extent of the value of the security.
 By misrepresentation: (Sec 142) when a creditor misrepresents to the surety regarding the
material facts, the guarantee is invalid and therefore the surety is discharged.

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  By concealment: (Sec 143) When a creditor obtains a guarantee by concealing or keeping
silent over the material facts, the surety is discharged as the guarantee is invalid.
 Failure of co-surety to join: (Sec 144) Failure on the part of some person to join the
surety who gave the guarantee on the express understanding that the creditor shall not act
upon it until such another person has joined in it as co-surety, invalidates the guarantee
and therefore discharges the surety.

 Invalid guarantees:
Under the following circumstances, the contract of guarantee shall be invalid:

 By misrepresentation: (Sec 142) when a creditor misrepresents to the surety regarding the
material facts, the guarantee is invalid and therefore the surety is discharged.
 By concealment: (Sec 143) When a creditor obtains a guarantee by concealing or keeping
silent over the material facts, the surety is discharged as the guarantee is invalid.
 Failure of co-surety to join: (Sec 144) Failure on the part of some person to join the
surety who gave the guarantee on the express understanding that the creditor shall not act
upon it until such another person has joined in it as co-surety, invalidates the guarantee
and therefore discharges the surety.
 Essential elements absent: If the guarantee lacks one or more of the essential elements of
an ordinary contract, the guarantee will be invalid.

3. Statutory analysis of Guarantee:

1. There must be debt existing which should be recoverable.

2. Three parties are involved:

 Principal Debtor, Creditor & Surety.

3. Three contracts take place

 Between principal debtor & creditor

 Between creditor & surety.
 Between surety & principal debtor.

4. There must be distinct promise, oral or written, by surety to pay debt in case of default
committed by principal debtor.

5. There must be some consideration

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6. The liability must be legally enforceable

7. The contract of guarantee must have all the essentials of contract

8. Liability of Surety is Contingent.

9. In every Guarantee there is an implied indemnity given by principal debtor to surety.

10. Guarantee will be all parties.

11. Guarantee is to be stamped. (Maximum stamp duty Rs.10 lakhs)

12. Guarantee is in possession of creditor.

4. Judiciary analysis
Case law:
Ansal Engineering Projects Ltd. vs. Tehri Hydro Development ... on 31 July, 1996

Equivalent citations: 1996 VIAD SC 290, 1997 88 CompCas 149 SC

Bench: K Ramaswamy, S Ahmed, G Pattanaik
ORDER:
1. This Special Leave Petition arises from the order of the learned Single Judge of the Delhi High
Court dated January 17, 1996 made in Suit No. 990/95. The petitioner had sought for injunction
under Section 41 read with Schedule II of the Arbitration Act, 1940 [for short, the 'Act'] to
restrain the respondent from invoking the bank guarantee No. 33/1991 dated February 13, 1991
to encash Rs. 57,9701- pursuant to the letter of invocation dated April 5, 1995. The facts
mentioned therein are that petitioner had entered into contract on March 30, 1991 pursuant to a
tender submitted by him to construct 108 residential quarters at Katharia, Bhagirath Puram,
Tehri. The construction was to be completed within stipulated period but was not completed. In
terms of the contract, the first respondent had terminated it. The petitioner availed of the remedy
under Section 20 of the Act for appointment of an arbitrator for reference of the dispute in terms
of the contract. Pending consideration thereof, he filed an application to restrain the respondent
to encash the bank guarantee. The respondent after termination of the contract had issued a letter
of invocation dated April 5, 1995 calling upon the UCO Bank to pay the aforesaid amount in
terms of the bank guarantee. It was contended in the High Court that the amount due and payable
by the petitioner should be determined in the suit. The bank guarantee could not be invoked till
then and the payment thereof could not be made. The respondent had played fraud on the

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petitioner in entering into the contract and seeking extension of the time. There are exceptional
circumstances which necessitated the petitioner to seek relief of injunction pending
determination of the amount due and payable by the petitioner. The High Court rejected the
contentions and dismissed the petition. Thus, this special leave petition.

2. Admittedly, the bank guarantee given by the UCO Bank on behalf of the petitioner reads as
under:

On production of a Bank Guarantee for the above principal amount and interest due thereon, we,
UCO Bank, 5, Parliament Street, New Delhi (hereinafter referred to as "the Bank") at the request
of Ansal Engineering Projects Limited Contractor (s) do hereby undertake to pay to the
Corporation an amount not exceeding Rs. 57,57,970/- plus interest as aforesaid against any loss
or damage caused to suffered or would be caused to or suffered by the Corporation by reason of
any breach by the said Contractor (s) of any of the terms or conditions contained in the said
Agreement.

We, UCO Bank, 5, Parliament Street, New Delhi do hereby undertake to pay the amount due and
payable under this guarantee without any demur, merely on a demand from the Corporation
stating that the amount claimed is due by way of loss or damage caused to or would be caused to
or suffered by the Corporation by reason of breach by the said contractor (s) of any of the terms
or conditions contained in the said Agreement or by reason of the Contractor (s) failure to
perform the said Agreement. Any such demand made on the bank shall be conclusive as regards
the amount due and payable by the bank under this guarantee. However, out liability under this
guarantee shall be restricted to an amount not exceeding Rs. 57,57,9707/- plus interest due on the
outstanding balance of mobilisation advance @ 18% p.a.

We undertake to pay to the Corporation money so demanded notwithstanding any dispute or

disputes raised by the Contractor (s)/Supplier (s) in any suit or proceeding pending before any
Court or Tribunal relating thereto. Our Liability under this present being absolute and
unequivocal.

3. The letter of invocation of the respondent is thus:

We hereby invoke subject Bank Guarantee and demand the amount detailed herein after as the
amount claimed is due by way of loss and damage caused to or would be caused to or suffered
by THDC/ourselves by reason of breach by Your customer of the terms and conditions contained

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in the said agreement and also by reason of your Customer's failure to perform the said
agreement.

THDC/We are limiting our claim against you to the extent of the principal amount of
mobilization advance lying outstanding against your customer plus interest due on the
outstanding balance of mobilization advance @ 18% per annum. You are as such, requested to
pay the following amounts:

(a) Outstanding amount of mobilization advance due and payable by M/s. Ansal Engineering
Project Limited, in terms of the Bank Guarantee in question. Rs. 51,02,6587

(b) Balance interest @ 18% per annum calculated on the outstanding mobilization advance upto
30th October, 1994, Rs. 13,89,6257-.

(c) Interest @ 18% per annum on the outstanding mobilization advance of Rs. 51,026587- w.e.f.
31.10.1994 till the date of payment by you.

This notice of demand may be treated , as a fresh demand to pay the above noted amounts in
terms of order dated 1.9.1994 passed by the Hon. High Court of Delhi at New Delhi in O.M.P.
No. 39/1994 titled as M/s Ansal Engineering Projects . Ltd. versus Tehri Hydro Development
Corporation Ltd. & Yourself. Photo copy of the said order is enclosed herewith for ready
reference.

4. It is settled law that bank guarantee is an independent and distinct contract between the bank
and the beneficiary and is not qualified by the underlying transaction and the validity of the
primary contract between the person at whose instance the bank guarantee was given and the
beneficiary. Unless fraud or special equity exists, is (sic) pleaded and prima facie established by
strong evidence as a triable issue, the beneficiary cannot be restrained from encasing the bank
guarantee even if dispute between the beneficiary and the person at whose instance the bank
guarantee was given by the Bank, had arisen in performance of the contract or execution of the
works undertaken in furtherance thereof The Bank unconditionally and irrevocably promised to
pay, on demand, the amount of liability undertaken in the guarantee without any demur or
dispute in terms of the bank guarantee. The object behind is to inculcate respect for free flow of
commence and trade and faith in the commercial banking transactions unhedged by pending
disputes between the beneficiary and the contractor.

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5. It is equally settled law that in terms of the bank guarantee the beneficiary is entitled to invoke
the bank guarantee and seek encashment of the amount specified in the bank guarantee. It does
not depend upon the result of the decision in the dispute between the parties, in case of the
breach. The underlying object is that an irrevocable commitment either in the form of bank
guarantee or letters of credit solemnly given by the bank must be honoured. The Court exercising
its power cannot interfere with enforcement of bank guarantee/letters of credit except only in
cases where fraud or special equity is prima facie made out in the case as triable issued by strong
evidence so as to prevent irretrievable injustice to the parties. The trading operation would not be
jettisoned and faith of the people in the efficacy of banking transactions would not be eroded or
brought to disbelief. The question, therefore, is: whether the petitioner had made out any case of
irreparable injury by proof of special equity or fraud so as to invoke the jurisdiction of the Court
by way of injunction to restrain the first respondent from encashing the bank guarantee. The
High Court held that the petitioner has not made out either. We have carefully scanned the
reasons given by the High Court as well as the contentions raised by the parties. On the facts, we
do not find that any case of fraud has been made out. The contention is that after promise to
extend time for constructing the buildings and allotment of extra house and the term of bank
guarantees was extended, the contract was terminated. It is not a case of fraud but one of acting
in terms of contract. It is next contended by Shri G. Nageshwara Rao, learned counsel for the
petitioner that unless the amount due and payable is determined by a competent court or tribunal
by mere invocation of bank guarantee or letter of credit pleading that the amount is due and
payable by the petitioner, which was disputed, cannot be held to be due and payable in a case.
The Court has yet to go into the question and until a finding after trial, a decision is given by a
court or tribunal that amount is due and payable by the petitioner, it cannot be held to be due and
payable. Therefore, the High Court committed manifest error of law in refusing to grant
injunction as the petitioner has made out a prima facie strong case. We find no force in the
contention. All the clauses of, the contract of the bank guarantee are to be read together. Bank
guarantee/letters of credit is an independent contract between the bank and the beneficiary. It
does not depend on the result of the dispute between the persons on whose behalf the bank
guarantee was given by the bank and the beneficiary. Though the question was not elaborately
discussed, it was in sum answered by this Court in Hindustan Steel Workers Construction Ltd. v. G.S.
Atwal & Co. (Engineers) Pvt. Ltd. This Court had held in Para 6 that the entire dispute was pending
before the arbitrator. Whether, and if so, what is the amount due to the appellant was to be
adjudicated in the arbitration proceedings. The order of the learned Single Judge proceeds on the
basis that the amounts claimed were not and cannot be said to be due and the bank has violated
the understanding between the respondent and the Bank in giving unconditional guarantee to the
appellant. The learned Judge held that the bank had issued a guarantee in a standard form,
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covering a wider spectrum than agreed to between the respondent and the bank and it cannot be a
reason to hold that the appellant is in any way fettered in invoking the unconditional bank
guarantee. Similarly, the reasoning of the learned Single Judge that before invoking the
performance guarantee the appellant should assess the quantum of loss and damages and mention
the ascertained figure, cannot be put forward to restrain the appellant from invoking the
unconditional guarantee. This reasoning would clearly indicate that the final adjudication is not a
pre-condition to invoke the bank guarantee and that is not a ground to issue injunction restraining
the beneficiary to enforce the bank guarantee. In Hindustan Steel Works Construction Ltd. v. Tarapore
& Co. & Anr. , it was Contended that a contractor had a counterclaim against the appellant; that
disputes had been referred to the arbitrator and no amount was said to be due and payable by the
contractor to the appellant till the arbitrator declared the award. It was contended therein that
those were exceptional circumstances justifying interference by restraining the appellant from
enforcing the bank guarantee. The High Court had issued interim injunction from enforcing the
bank guarantee. Interfering with and reversing the order of the High Court, this Court has held in
para 23 that a bank must honour its commitment free from interference by the courts. The special
circumstances or special equity pleaded in the case that there was a serious dispute on the
question as to who has committed the breach of the contract and that whether the amount is due
and payable by the contractor to the appellant till the arbitrator declares the award, was not
sufficient to make the case an exceptional one justifying interference by restraining the appellant
from enforcing the bank guarantee. The order of injunction, therefore, was reserved with certain
directions with which we are not concerned in this case.

6. A conjoint reading of the bank guarantee and the letter of invocation demanding payment of
amount due and payable by the petitioner would show that the first respondent had specified and
quantified in terms of the bank guarantee a total sum with interest due thereon in a sum of Rs.
57,57,970/- as on April 5, 1995. A demand in terms of clause (i) of the bank guarantee was
made. The bank had irrevocably promised and undertaken to pay to the Corporation without any
demur or damage an amount not exceeding Rs. 57,57,970/- plus interest's per terms and
conditions contained in the bank guarantee untrammelled by the bi-lateral agreement between the
petitioner and the first respondent-Corporation stating the amount claimed was due and payable
on account of loss or damage caused to or likely to be caused to or by the Corporation by reason
of any breach by the said contract or any of the terms and conditions contained in the said
agreement notwithstanding any dispute or disputes raised under the contract in any suit or
proceedings pending before any court or tribunal relating thereto. The liability of, the bank is
absolute and unequivocal; it would thereby be clear that the bank is not concerned with the
ultimate decision of a court and a tribunal in its finding after adjudication as to the amount due

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and payable by the petitioner to the first respondent. What would be material is the quantification
of the liability in the letter of revocation. The bank should verify whether the amount claimed is
within the terms of the bank guarantee or letter of credit. It is axiomatic that any payment by the
bank, obviously be subject to the final decision of the court or the tribunal. At the stage of
invocation of bank guarantee, the need for final adjudication and decision on the amount due and
payable by the petitioner, would run contrary to the terms of the special contract in which the
bank had undertaken to pay the amount due and payable by the contractor. Thus we hold that
there is no question of making out any prima facie case much less strong evidence or special
equity or exceptional circumstances for interference by way of injunction.

7. The special leave petition is accordingly dismissed.

5. Conclusion:

"It is settled law that bank guarantee is an independent and distinct contract between the bank
and the beneficiary and is not qualified by the underlying transaction and the validity of the
primary contract between the person at whose instance the bank guarantee was given and the
beneficiary. Unless fraud or special equity exists, is pleaded and prima facie established by
strong evidence as friable issue, the beneficiary cannot be restrained from encashing the bank
guarantee even if dispute between the beneficiary and the person at whose instance the bank
guarantee was given by the bank, had arisen in performance of the contract or execution of the
works undertaken in furtherance thereof."

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 6. Bibliography:

 Indian Contract Act

 Business law for management: K.R.BULCHANDANI
 Indiankanoon.org
 http://www.e-law.bc.ca

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 Criminal
Case
(Barendra Kumar Ghosh v.
The King)

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 Contents

Introduction .......................................................................................................................................
Statement of Fact ..............................................................................................................................
Issues before the court ......................................................................................................................
Decision of the court .........................................................................................................................
Chapter 1 ...........................................................................................................................................
Judicial Interpretation Used By the Court .....................................................................................
Chapter 2 ...........................................................................................................................................
Section 34 and its ingredients........................................................................................................
Participation and Presence on Scene of Crime in regard to Barendra Kumar Ghosh ...................
Conclusion ........................................................................................................................................
Bibliography .....................................................................................................................................
Cases..............................................................................................................................................
Books .............................................................................................................................................

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Introduction

The case of Barendra Kumar Ghosh or popularly known as the postmaster case has been
discussed in the project the present case deals with the section 34 of Indian penal Code whereby
a person is held liable for a criminal act if it is done by several persons in furtherance of the
common intention. The present section does not create a specific offence as in the case of section
149, the section simply puts forward that every person in a crime would be held liable by virtue
of his participation in the criminal act as it gives encouragement, support, confidence to the
actual person who is involved in the act. The accused in the present case is convicted under
section 302 read with section 32 of Indian penal code for the murder of the post master. The
accused pleads that he was not present on the scene of the crime (murder) since he was standing
out hence he should be left out from the charges of murder. The court held that if an act is done
in furtherance of the common intention then each person is liable for the result of them all as if
the act was done by him alone. Hence the project at lengths will discuss the case in the light of
the sections mentioned above and will also look into the arguments of both the parties along with
the discussed case laws cited.

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Statement of Fact

 On August 3, 1923, the sub-postmaster at Sankaritolla post office was counting money at
his table in the back room, several men appeared at the door which leads into the room
from a courtyard, and, went inside the door, called on him to give up the money. Almost
immediately afterwards they fired pistols at him.
 He was hit in two places, in one hand and near the armpit, and died instantaneously.
Without taking any money the assailants fled, separating as they ran.
 One man was held by the post office assistant, this was the appellate, others accused fled
the crime scene
 The evidence with the jury pointed out to the presence of three accused at the crime scene
that fired at the post master, the accused was identified due to the distinct clothes he
wore.
 According to the prosecutor he was one of the person that fired at the post master, the
accused denied his charge on the ground that he was standing outside and had no direct
involvement in the commissioning of crime or the murder of the post master as he did not
fire the shots.
 Charges preferred were of murder under section 302, voluntary causing hurt under 394
and attempt to commit robbery.
 To the first charge the accused pleaded not guilty. And to the second charge he pleaded
guilty of robbery.

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Issues before the court

 The accused had the intention of robbery but did not possessed the Mens rea or the Actus
rea of murder.
 Whether a person is liable to the extent of act committed by him or not?
 Whether a person is liable for the acts of the other?
 Whether physical presence is necessary on the scene of crime or not?

Decision of the court

Privy Council agreed to the decision of the trial court and the high court of Calcutta that the
accused is liable for the murder, even though the fatal shot was not fired by him and they had a
common intention.

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Chapter 1
Judicial Interpretation Used By the Court
The accused his arguments on the case of Emperor v. Nirmal Kanta Roy1 where two men acting
in concert fired at the policemen, one hitting and killing him and the other missing the shot, the
judge acquitted the latter from the charges of murder under 302 and section 34. The reasoning
given by him was that section 34 applies to a criminal act which is done by several persons in
furtherance of the common but in the present case only one person killed the policemen, not the
both and the prisoner only tried to kill the police men. The learned judge said that “In order to
make the accused liable for murder under the section the offence and the attempt to commit it are
the same ‘act’ which in the present case is not.”2 However the following case was not relied
upon by most of the judges in the Calcutta bar due to the flaws contained in it as in cases where
the blows are done by several person it is difficult to know which blow or stab actually
extinguished the life of the deceased. The learned judges held that in cases where several shots
are fired but only one wound is there, even in such cases it is necessary that the general rule
remains the same.

Other cases that were relied for the interpretation of section 34 were Emperor v. Profulla Kumar
Mazumdar3in the present case the accused Profulla kumar mazumdar along with his companion
killed Mukunda lal and the two accused in the case were Profulla kumar and Manindra kumar,
the latter was acquitted on the grounds of reasonable doubt. Mukunda was stabbed in the neck
and when assistance came to him he pointed out to them, and who at that time were running
away. Profulla was caught and charged with s. 302 along with 34 of IPC. However when the case
went for trial the jury was confused as it was not clear whether the fatal blow was struck by
Profulla or his companion. The judge on the point of common intention said that if the two men
had common object to kill the deceased then both of them are equally guilty, but if from the
circumstances it can be reasonably inferred that one of them was ignorant of the intentions of the
other then only the man who struck the final blow would be held liable however if one of the two
men is guilty and it is not possible to find who struck the final blow then both of them are not
guilty

1
Emperor v. Nirmal Kanta Roy, ILR 41C. 1072.
2
Ibid.
3
Emperor v. Profulla Kumar Mazumdar (1922) I.L.R 50 C. 41.

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Chapter 2
Section 34 and its ingredients
Section 34. “When a criminal act is done by several persons, in furtherance of 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”4

Before the debate is continued whether principal presence is a must or not in order to prove
section 34 of the IPC it is necessary to have a look at the relevant ingredients of section 34 that
can be inferred from the above section.

i). there should be a criminal act.

ii). the criminal act should be done by several persons.

iii). and the criminal act should be done in furtherance of the common intention of all the
persons.

The condition of a criminal act means that the act should be of such a nature that it is not lawful,
a lawful act of self-defense whereby a group of people in order to preserve their life commit a
criminal act are not governed under this section as the act was a lawful one done to save one’s
life. But if in the course of such action any one person among them does any act that does not
amount to legal then that person alone would be held liable and not the group as there is no
thread of common intention that binds them all together.

There is wide difference between the term offence and a criminal act, the word offence is result
or effect of a criminal act, criminal act is wider then offence which is defined under section 40of
the IPC. A criminal act is a series of act which is done/committed by an offender that results in
punishment under the code of the law (as the law maybe). The word act is not confined to the
meaning that you do something directly even not acting may amount to act eg. In case of a sati
where people are watching the entire event and are merely standing there as a spectator this
proves their tactic support to the event and also qualifies as a encouragement to the person who

4
RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 32(30ed. 2009).

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is committing the crime hence the people who are silently standing could be also liable for a
criminal act.

For a criminal act to come under the ambit of section 34 it is required that the act be done by
several persons, if the act is done by a single person then section 34 would not apply to it, each
person should be a participant in the crime in some way or the other and his involvement is
required whether directly or indirectly. In a case where partners form a company and take a room
on rent in pursuance of their business goal and if one of the partner defrauds a third party then it
will not amount to a case under section 34 as common thread of common intention is not present
among the partners. It is not required that all of the offenders in the crime carry out the same
work together then can do the work jointly in furtherance of the common goal like in case of an
armed robbery a person can guard the scene whereas other can look after the people who are
there on scene and the third would do the actual work of collecting cash in the present scenario
each of the three offenders would be liable for the same crime in the same sense.

The word in furtherance of the common intention has a clear meaning that the act was done on
pursuance of an intention and there may be a series of act done that have helped in achieving the
final act. In the above example if the robbers were armed and one of the robber shoots a person
because that person tries to inform the police then the act of shooting that person was done in
furtherance of the common intention that is robbery and each of the persons involved in robbery
would be liable for the same as the common intention was to rob the bank. Let us take a variation
in the above example if the robbers had mutually agreed to kill the manager of the bank in order
to simplify their task of collecting money and reducing the risk of informing police and if by
mistake instead of the manager a clerk was killed who was managing the bank on behalf of the
manager then too the robbers would be liable for the act of murder even though they planned to
kill the manager and not the clerk. Hence for the element of furtherance of common intention it
is required that the act is in connection to common intention.

Participation and Presence on Scene of Crime in regard to Barendra Kumar Ghosh

The apex court has held that it is the essence of section 34 that the person should be present on
the scene of the crime but the physical presence does not amount to the presence of the person in
the actual room of the crime, he can stand, guard or be ready to warn his companions about the

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imminent danger that may prop up or maybe plan an escape root for his companions by
facilitating the escape, but his participation is a must in some way or the other when the crime is
being committed.5 However there is an exception to this as well as in every case the participation
may not be physical presence as in offences of physical violence where presence at the scene of
crime may be necessary but in cases where offence consists of diverse acts which may be done at
different time and places the applicability of physical presence is not a necessity. 6

Hence in case where house wrecking was done and quantities of copper wire had been stolen
with the help of duplicate keys which were supplied by the accused who was not present at the
scene of the crime but he was present at the weighbridge where the attempt was made to dispose
of the stolen copper wire was proved, Hence the court held that he would be liable for act with
the aid of section 34 and 107 of IPC.7

Mere presence at the scene of crime without any participation to facilitate the offence is not
enough as in the case of state of Orissa v. Raghu ram Sahu8 where the accused went to his field
with his friends to protect his crop from being forcibly reaped and in the course a scuffle broke
out and he killed a man of the opposite party, now others could not be held liable for homicide as
there was no intention among them for killing that person neither did they do anything they were
mere spectators.

The degree of participation of the accused in furtherance of the common intention is also a
relevant factor that has to be considered as in the case of Darshan Singh v. state of Rajasthan9
the wife of the accused inflicted a single blow and then stood as a mere spectator whereas the
accused with others inflicted heavy blows with sharp objects on the decease, it was held by the
court that it could not be held that whether the accused shared a common intention of causing
death hence she was not liable for murder and her conviction was changed for grievous hurt.

In the present case of Barendra Kumar Ghosh the accused argued that he was the man who stood
outside the courtyard and was in nowhere in the room to the present contention the court asked

5
Shreekantiah Ramayya,(1954) 57 Bom Lr 632(SC)
6
Jaikrishnadas Desai, (1960) 3 SCR 319.
7
Tukaram Ganpat v. State of Maharastra, (1974) Cr LJ 469.
8
State of Orissa v. Raghuram Sahu, (1979) Cr LJ 502 (Orissa).
9
Darshan Singh v. State of Rajasthan, (1995) 2 Cr LJ 2138 Raj.

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why was he present at the scene of the crime at all and why did he not take himself off these
questions were not answered by the accused.

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Conclusion

In the present case Barendra Kumar was liable as he helped in commissioning of the crime he
participant as he provide tacit support to the commission of the crime in spite of the fact that he
did not fire the fatal shot. The present case deals with section 34 of the IPC and lays down the
important part in view of the interpretation of the section for future use. The court in deciding the
case has laid down important principles which have not yet struck down by the other judges in
the course of time like the importance of participation of the accused in the commission of the
crime and the mere presence does not amount to participation for the section to be used there
should be active participation of the accused. The court also laid down that it is not necessary
that the accused must be present on the scene of the crime i.e. the exact room where the crime
has happened, he could be anywhere and facilitate or help in the commissioning of the crime, the
accused could be planning an escape route for the offenders by being ready in the car or he could
even guard the crime scene so that there is no interference. The court also laid down the basic
principles of section 34 and how a common intention is different from a similar intention.

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Bibliography
Cases
B.N. Srikantiah v. state of Mysore, (1958) AIR SC 672 ..................................................................
Darshan Singh v. State of Rajasthan, (1995) 2 Cr LJ 2138 Raj........................................................
Emperor v. Nirmal Kanta Roy, ILR 41C. 1072 ................................................................................
Emperor v. Profulla Kumar Mazumdar (1922) I.L.R 50 C. 41 ........................................................
Garib Singh v. State of Punjab, (1927) Cr LJ 1286 ..........................................................................
Jaikrishnadas Desai, (1960) 3 SCR 319............................................................................................
Mehbub Shah v. Emperor, (1945) AIR PC 118 ................................................................................
Pandurang v. State of Hyderabad, (1955) AIR SC216 .....................................................................
R v Cruse (1838) 8 Car & P 541 .......................................................................................................
Shiv Ram v. State of Uttar Pradesh, (1998) AIR SC 49 ...................................................................
Shreekantiah Ramayya,(1954) 57 Bom Lr 632(SC) .........................................................................
State of Orissa v. Raghuram Sahu, (1979) Cr LJ 502 (Orissa) .........................................................
Tukaram Ganpat v. State of Maharastra, (1974) Cr LJ 469..............................................................

Books
K.D. GAUR, THE INDIAN PENAL CODE 70(4 ed. 2009) .......................................................................
RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 32(30ed. 2009)............................................

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