MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B.(Hons.) Year-III Semester-V: Academic Year: 2021-2022

First Open Book Assessment, August-2021

Course Code and Name: 5.3 Criminal Law I(Indian Penal Code)
Name of Student: Nakul Chadha UID: 19-66

Answer 3.

i. This defense would fail in a court of law since criminal law punishes not only completed
crimes but also activity that occurs before a crime is committed. In the category of
inchoate crimes, criminal attempt is included. The Supreme Court recently addressed why
the offence of attempt must be punished in Aman Kumar v. State of Haryana. It observed
that, “An attempt is made punishable, because every attempt, although it falls short of
success, must create alarm, which by itself is an injury, and the moral guilt of the
offender is same as if he had succeeded.”
ii. the commission of a crime goes through three processes-
 conceiving an intention to commit a crime,
 preparation for its commission
 and an attempt to commit it.

In most cases, the first two stages are not punishable, but if an act reaches the third stage, it is
subject to criminal liability. As a result, attempting to commit a crime is one of a chain of
events. (See, for example, State v. Narayan Singh, 1989 SC 1789). As stated in Madan Lai
v. State of Jammu & Kashmir, a crime of attempt requires proof that the accused has
progressed beyond the stage of preparation.

According to the facts of the case, 5 cartons of charas were kept in the auto rickshaw, and 3
more cartons of charas were discovered in the car they claimed to be delivering to boutibori.
A4 and A5 were discovered in the godown, packaging more charas cartons. It is apparent
from the evidence that they have progressed beyond the stage of ordinary preparation. They
had loaded the cartons into the car and were driving to boutibori when they were halted by
the cops. As a result, it is apparent that if the police had not intervened, they would have
completed the crime.

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iii. In Abhyanand Mishra v. State of Bihar, the defendant applied to the university for
admission to sit for the M.A. examination. In order to get admission to the university, he
presented a variety of fake documents. The university then discovered that the accused
was neither a graduate nor a teacher. Thereupon, he was held to be guilty under S. 429
read with S. 511, IPC. The court stated that the accused's preparation was complete when
he prepared the application for submission to the institution, and that the minute he sent
it, he entered the domain of attempting to conduct a cheating offense.

They have attempted to commit the said crime. And all the five accused shall be held
liable under section 25 r/w 35 of NDPS act.

Now, in the second offence, A2 and A3 have taken defence that they cannot be charged with
attempt to murder with section 34 as they did not have the common intention to murder the
police constable. Their defense won’t sustain.

i. As given in a number of judgements including Parichhat v. State of Madhya

Pradesh, there are three main ingredients of the section-
 A criminal act must be done by several persons;
 The criminal act must be to further the common intention of all, and
 There must be participation of all persons in furthering the common intention.

The essence of joint liability under section 34 is the intentional joint criminal act by several
people with common intention. Thus, the essence is the simultaneous agreement of the minds
of all involved in the unlawful activity in order to achieve a specific goal.

In the case at hand, the accused A1, A2, and A3 conspired to flee the scene of the crime in
order to avoid being apprehended by the police. A1 was armed with an AK 47 when he
opened fire on the police policeman. This is a critical fact that must not be overlooked. We
can't assume that the other members of the conspiracy were unaware that one of their own
was carrying such a dangerous weapon.

The court has stated in Ramashish Yadav v State of Bihar, Mahboob Shah v. Emperor,
and other cases that the court must consider, among other things, the manner in which the
accused arrived at the scene, mounted the attack, the determination and concert with which
the attack was made, the nature of injury caused by one or more of them, the background of
the incident, and the nature of weapon use, among other factors.

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In other words, a court is required to look into the totality of the circumstances for arriving at
a judicial conclusion whether an accused had a common intention to commit the offence.

Hence, A1, A2, and A3 shall be held liable for attempt to murder under section 307 r/w
34 of IPC.

Answer 5)

Synopsis: Introduction – relevant provisions – judicial pronouncements – analysis –

conclusion.

All five police officials (A1-A5) shall be held jointly liable under Section 302 r/w Section 34
of I.P.C as they shared a common intention. The presence of common intention implies a
constructive liability which renders every member of the group that commits the crime
accountable for it. This can be determined through the following provisions and judicial
pronouncements.

Relevant provisions

The following provisions provide for the aspect of common intention. These are significant
provisions in the present case:

i. Section 34 – It states that when a criminal act is done by several persons in

furtherance of the common intention of all, each of such persons is liable for that act in the
same manner as if it were done by him alone.

ii. Section 35 – It states that when an act is criminal by reason of its being done with a
criminal knowledge or intention, each of such persons who joins in the act with such
knowledge or intention is liable for the act in the same manner as if the act were done by him
alone with that knowledge or intention.

iii. Section 37 – It states that when an offence is committed by means of several acts,
whoever intentionally co-operates in the commission of that offence by doing any one of
those acts, either singly or jointly with any other person, commits that offence.

Relevant judicial pronouncements

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 i. Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1) – The court held
that the performance of separate acts, similar or diverse, by several persons, if all
are done in furtherance of a common intention, each person is liable for the result
of them all, as if he had done them himself.
ii. Brijlala Prasad Sinha v. State of Bihar (AIR 1998 SC 2443) – In this case, the
Station House Officer (SHO) of Barachatti Police Station in Bihar received
information that a Maruti van loaded with criminals was driving down the
highway and firing indiscriminately. The officers ran out of the police station after
getting the information. A traffic jam led the Maruti van to come to a halt. When
police officers approached the Maruti van, they opened fire indiscriminately,
killing all three occupants. Later, he filed an entry in the Station Diary, claiming
that when the occupants of the Maruti Van began firing at police officers, the
officers retaliated by fire, and three people were killed as a result of the incident.
This was a blatant lie. The court noted that the accused were armed with
revolvers, while the constables and hawaldar were armed with rifles. The shooting
was done from a short distance, and the rifle bullets killed the guy, but revolver
bullets were also fired. Even if they did not leave the police station with this aim,
the court determined that a common intention had emerged over the course of the
action. The three police officers were convicted of offence under section 302 r/w
section 34 IPC, and while the SHO was sentenced to death, the other two officers
were sentenced to life imprisonment.
iii. Kripal v. State of Uttar Pradesh (AIR 1954 SC 706)- The court held that the
common intention to bring about a particular result may well develop on the spot
as between a number of persons, with reference to the facts of the case and
circumstances of the situation.

Analysis

It is clear in the present facts that the police officials have fulfilled the following three
ingredients of the section 34:

i. A criminal act must be done by several persons – The act was done by five police
personals i.e. A1, A2, A3, A4, A5.

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ii. The criminal act must be to further the common intention of all – All the police
officials left the police station armed with revolvers and riffles in a police jeep.

iii. There must be participation of all persons in furthering the common intention - The
firing was executed by A1, A2 and A3 while A4 and A5 followed instructions. Evidently,
there is participation by all.

There was also an attempt to deceive the court. The diary had been tampered with, and
forensic examinations revealed that the deceased had not attempted to shoot police officers.
The police car was not damaged, and no one was injured as a result of the incident. Because
the facts in this case are substantially similar to those in Brijlala Prasad Sinha v. State of
Bihar, it will serve as a strong precedent.

In essence, all the police officials will be held guilty and shall be jointly liable for their acts
under Section 302 r/w Section 34 of the Indian Penal Code.

Answer 1.

Issue: Whether the two German mariners can be tried by the local courts of Vishakhapatnam,
India?

In the current factual matrix, we will have to look at territorial jurisdiction of the IPC, i.e.
intra territorial operation, which accounts for offences occurring within India's borders, and
extra territorial operation, which accounts for offences occurring outside of India's borders,
when deciding whether the local courts of Vishakhapatnam will have jurisdiction for the trial
of two German mariners.

Now, Section 2 of the IPC, 1860, deals with the IPC's intra-territorial application, and
Sections 3 and 4 when read together, deal with the IPC's extra-territorial applicability.
Section 2 specifies the jurisdictional scope of the IPC's application to crimes committed
within India. Furthermore, as stated in Mobarik Ali v. State of Bombay, AIR 1957, the
emphasis on the term "every individual" makes it apparent that the law applies equally to all
people regardless of caste, status, rank, or country when determining guilt for any act or
omission. The crucial aspect to note here is that the Code makes no distinction between an
Indian citizen and a foreigner, for offence committed in India.

Two Indian fisherman, A1 and A2, were killed off the coast of Vishakhapatnam, India, on an
Indian ship named ‘Vahini,' after German marines on board the German ship named ‘Pristine'

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opened fire on them. The crucial truth is that fisherman A1 was murdered when the ship was
26 nautical miles from the Indian coast, and they later fired a pistol shot and killed A2 when
they were 11.8 nautical miles away. As a result, admiralty jurisdiction must be used in this
case. Admirality jurisdiction refers to the authority to try crimes committed on the high seas.

Now, the current factual matrix is very similar to a leading case, Republic of Italy v. Union of
India (2013) 4 SCC 721, in which the Supreme Court was asked to decide whether the
detention and arrest of two Italian Navy Military Contingents by Kerala Police, who killed
two Indian fishermen on an Italian ship named Enrica Lexie at 20.5 nautical miles while
passing off the coast of Kerala, was proper. Accused alleged in a writ case before the Kerela
High Court that their arrest and trial were unlawful because the incident occurred outside of
India's territorial seas, but within the Contiguous Zone (CZ) and Exclusive Economic Zone
(EEZ) (EEZ).

It's also worth noting that India is a signatory to the UNCLOS, or United Nations Convention
on the Law of the Seas. The Maritime Zones Act of India establishes different zones of the
sea, such as territorial waters, which extend up to 12 nautical miles from India's baseline, the
contiguous zone, which extends up to 24 nautical miles from India's baseline, and the
exclusive economic zone, which extends up to 200 nautical miles from India's baseline.

However, in contrats to argumenst of Italian marines, State of Kerala, by placing reliance on

Section 2 of IPC along with Section 3 and Section 7 of territorial waters, Continental Shelf,
EEZ and Maritime Zones Act 1976, extending the IPC and the CrPC to EEZ dismissed the
writ petition. It held that Section 2 of the IPC is extended to CZ/EEZ and thereby the Kerala
police will have jurisdiction to investigate.

However, after delving into the relevant international instruments and authorities in a special
leave petition, the Supreme Court concluded that UOI, not the State of Kerala, had the right
to prosecute the accused. The State of Kerala has no jurisdiction over the CZ, but UOI
applied the IPC and Section 188A of the CrPC to the CZ, allowing UOI to take notice of the
case rather than the State of Kerala.

However, in 2015, the Permanent Court of Arbitration was referred the case by an
international body on the law of the seas. The Permanent Court of Arbitration's judgment on
India's jurisdiction was denied, and it was noted that the Indian courts' jurisdiction will only
extend up to 12 nautical miles from the country's baseline, which is regarded the country's

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territorial boundary. It was held that the Indian Court will not have jurisdiction irrespective of
the fact that the incident happened within the contiguous zone but after referring to the
special provisions of UNCLOS to which India is a party, it is the flag state who will have the
requisite jurisdiction

In light of the Maritime Zones Act of 1976 and UNCLOS, 1982, the EEZ has been extended
to 200 nautical miles. Although the provisions of Section 188A of the CrPC have been
extended to the EEZ, they have also been extended to ‘designated zones,' which are restricted
to the extraction of natural resources, exploration, and so on. EEZ, on the other hand, remains
a part of the high seas over which no government has sovereignty.

Now, relying on the discussion of the above mentioned case of Enrica Lexie, it can be
inferred that :

For the first instance i.e. A1, who was killed by firing upon at 26 nautical miles, which falls
beyond the CZ and within EEZ. Therefore, relying on the above judgement, it is obvious that
State of Vishakhapatnam will have no jurisdiction as extension ofSection 188A of CrPC to
EEZ does not extend the authority of the Vishakhapatnam State beyond the territorial waters,
which is the limit of its area of operations. Further, Union of India will also haveno
jurisdiction as the extension of CrPC and IPC is confined to exploiatation of natural resources
and other economic activities. Therefore, neither State of Vishakhapatnam nor Union of India
will have the jurisdiction but the flag state i.e. Germany will have the jurisdiction to try the
accused.

Furthermore, in the case of A2, who was killed by fire on 11.8 nautical miles, it is clear that
the location is well within the territorial seas of the State of Vishakhapatanam's coastline. As
a result, the State of Vishakhapatnam will have authority and competence to investigate and,
if necessary, prosecute the offence.