Group Liability and Strict Liability

Ankit Pathak*

Introduction
The Penal Code, 1860 contains several provisions that embody the doctrine of common purpose
found in criminal law systems around the world. That doctrine enables criminal responsibility to
be attached to an accused for a crime committed by another person on the basis that the crime
was part of the common design agreed upon by the accused and that other person. Group liability
is a term used for people who have committed an act in pursuance of a common intention, where
each of the persons is liable in the same manner, as if this act was done by them alone. Section
34 IPC, states the joint liability of partners in crime.

GROUP LIABILITY
Scope of the Principle of Joint Liability as Provided in Section 34
The section only provides for the constitution of joint liability, not the punishment. This section
is only a rule of evidence and does not constitute a substantive offence. It provides for the
principle of constructive liability. As this section is not an offence in itself, this section is always
read with other sections under the Indian Penal Code, 1860. This is the limited scope of joint
liability under Section 34, Indian Penal Code, 1860.
In the case of Chhotu v State of Maharashtra, the complainant and the evidence proved that
there were three persons assaulting the victim. The three persons were held liable under joint
liability and assault. So. it can be deduced that the section cannot be read alone and requires it to
be read with some other section under the statute of India.
What is Common intention?
Mere surrender is not derivative of the fact that it will be counted as common intention. It is
necessary that there has been a prior conspiracy relating to that act. When the offence is proved
only on the basis of circumstantial evidence, the allegations of common intention cannot be
established in the absence of meeting of minds.
*1st Year, School of Law, (National Forensic Sciences University), Gujarat.
Section 34 is only a rule of evidence and does not create a substantive offence. The common
intention should be prior or antecedent to the occurrence. Common intention may develop during
the course of the occurrence and could develop on the spot.
Common intention is different from same or similar intention
Section 34 is only a Rule of Evidence and Does Not Create a Substantive Offence
In the case of Sachin Jana v State of Bengal, it was mentioned that the section is a rule of
evidence. The distinctive feature is the participation of the jointly liable people. The participation
in the direct offence will not matter but the people will be jointly liable as though the offence has
been committed by that person only.

The Common Intention should be Prior or Antecedent to the Occurrence

The common intention doctrine states that there should be an antecedent to the occurrence. A
clear distinction is made between common intention and common object is that common
intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan
implying a prior meeting of the minds, while common object does not necessarily require proof
of prior meeting of minds or pre-concert. Though there is a substantial difference between the
two sections namely Section 34 and Section 149, they also to some extent overlap and it is a
question to be determined on the facts of each case.
Common Intention may Develop during the Course of the Occurrence and could Develop
on the Spot
Common intention has to be ascertained in the investigations, however, it is not necessary that it
happens before the occurrence only. It might happen during the occurrence of the act as well.
The intention is curated at any given point in the action.

Common Intention is Different from Same or Similar Intention

Common intention mentions the fact that the people involved in the act had a common intention,
whereas similar intention includes the change in intention during the act due to the intervention
of some other external circumstances.
Scope of ‘Common Intention’
Section 149 of the Indian Penal Code, specifies that there must be a common intention along
with the unlawful act. The section holds the people in the act of unlawful assembly jointly liable
for the act done through a common intention. In the case of Queen v Sabib Ali, common
intention was viewed as a pathway to complete the unlawful action. In the case of Ganesh Singh
v Ram Raja, the court said that the common objective must be achieved through a common
intention of doing the task. It is generally ascertained by prior meetings, meeting of minds and
pre-arranged plans of doing something which is not legal. In Kripal Singh v State of Uttar
Pradesh, the court said that the common intention is supposed to be ascertained from the facts
and the circumstances of the case. The scope of common intention is also supposed to be
ascertained by the facts and circumstances of the case.

Joint Liability in Context of Free Fight

Joint liability becomes complicated when it talks about the situation where people divide into
hostile groups. The liability is difficult to determine because that creates a problem in
ascertaining whether the offence has been committed by the people or not and to what extent is it
performed by them.
Participation in the Criminal Act
Participation in the criminal act comprises of the following aspects:
1. Incitements

2. Ordering, soliciting or inducing

3. Participation in a common purpose

4. Punishment as a perpetrator

The criminal act is ascertained by the presence of these elements

Absence of Overt Acts—No Proof of Common Intention
In Jai Bhagwan v State of Haryana, it was said that in the absence of any overt act and proof of
intention, the common intention will not be proved and the person cannot be held liable for the
offence. Common intention is a prerequisite for a crime in a joint liability, along with
participation in the crime. The crime will not be proved in case there is absence of proof of overt
acts. The effect of such a circumstance is that one will be acquitted in the absence of proof of an
overt act against him or her.
Proof of Common Intention: Rule for Evaluating Evidence
Proof of common intention is evaluated through the measurement of participation in overt as
well as covert acts. The parties prove their involvements in the carrying out of the act. The proof
of common intention is measured by witnesses and deduced circumstances.

Conduct of Parties as Evidence for Proving Common Intention

Common intention can also be proved by the statements provided by the parties involved. The
conduct of parties as evidence may be used for proving common intention. For example, in the
case of a theft, the conduct of the people involved is proved by their participation and conduct in
the crime.

Circumstantial Evidence as Proof of Common Intention

This counts as the basic mode of proving the common intention of people involved in the crime.
The evidence that was found during the investigation of the circumstances is generally taken as
the most important and crucial evidence of proving the common intention.

The necessity of Overt Act for Proving Common Intention

In the case of Suresh v State of Uttar Pradesh, the court said that there either needs to be direct
evidence of the involvement or there has to be proof of a prearranged plan. The necessity arises
from the fact that the common law does not allow any person who is not guilty to be charged as
guilty. That is why there must be an ultimate proof of an overt act for proving common intention.

Appreciation of Evidence—Benefit of Doubt to be Given to Accused

The appreciation of evidence refers to the fact that there must be applicable evidence which can
really be considered as evidence. The evidence must be appropriate according to the Evidence
Act, 1872. This evidence must be such that the person accused cannot be given the benefit of
doubt under any circumstances. In case the evidence is not able to remove all the doubts, then it
must be considered as insufficient evidence and the accused must be given the benefit of doubt.
This is derived from the English legal systems.
Effect of Charge Against Accused under Section 149, and not Section 34, Indian Penal
Code 1860
The difference over here in these sections is just that of ‘common intention’. Charges may be
imposed against people under Section 149, but in case they are able to prove that there was no
common intention of the unlawful assembly then they may be absolved from criminal liability
under Section 34. The same cannot be done if they are not able to prove lack of common
intention.

STRICT LIABILITY
Strict liability applies to offences for which the prosecution is not required to prove mens rea for
one or more elements of the offence. What the defendant knew, believed, or intended is unlikely
to be relevant. Guilt can therefore be established by the commission of an act regardless of
mindset. Strict liability runs against the presumption that criminal offences require proof of both
actus reus and mens rea. Wright J in Sherras v De Rutzen stated:

‘There is a presumption that mens rea, an evil intention, or a knowledge of the

wrongfulness of the act, is an essential ingredient in every offence; but that
presumption is liable to be displaced either by the words of the statute creating the
offence or by the subject-matter with which it deals, and both must be considered.’

Strict liability is generally intended to regulate conduct that is particularly harmful to society.
Societal protection overrides the presumption that the prosecution must prove mens rea.

In Sweet v. Parsley a teacher had rented her house. The tenants were caught smoking cannabis
within the premises, which was not permitted by law. The teacher was found guilty by the trial
court for the violation of the provisions of the Dangerous Drugs Act, 1965 for mismanagement
of the premises. The teacher appealed on the ground for lack of knowledge about the activities of
tenants and argued that it was not foreseeable for her to anticipate such activities. The court
attempted to differentiate true crime with regulatory offence without any proper categorization
and acknowledged that strict liability was appropriate for regulatory offence. The court added
that generally, mens rea is essential for the offence to which real stigma is attached. The court
considered the instant case as ‘true crime’ and the accused was not held liable by the appellate
court for lack of mens rea on the ground that the stigma would cause her to lose her job.

Normally in criminal law existence of guilty intent is an essential ingredient of a crime and the
principle is expressed in the maxim “actus non facit run nisi mens sit rea.” This is a general
principle. However, the Legislature can always create an offence of absolute liability or strict
liability where mens rea is not at all necessary. Such a measure is resorted to in public interest
and such laws of strict liability are justified and cannot be said to be unreasonable. 1 Some strict
liability offenses in the Indian Penal Code (IPC) include:

 Section 121
 Section 124A
 Section 359
 Section 363 (kidnapping and abduction)
 Section 232 (counterfeiting of coins)
Strict liability laws are applied in regulatory offenses that enforce social behaviour. They are also
used when society wants to prevent harm and maximize the deterrent value of the offense.

Position of strict liability offences in India

One of the reasons why strict liability doctrine is not as developed in India as it is in the UK is, in
Britain, criminal law is not contained in single code promulgated by the legislative body, but it is
a conglomerate mass of rules based upon the ancient common law of England modified and
extended by the authoritative decisions of the judges in the long passage of history, and vastly
enlarged by the addition of statutory enactments made by parliament from timeF to time. On the
contrary penal laws in India are exhaustively codified leaving no scope for the judiciary to go
beyond statutes.

If we examine the Indian Penal Code, 1860 then, chapter IV (General Exception) mainly deals
with matters of the existence of which negate the existence of such an intent. The definition of
offences generally contains reference to evil intent so as to exclude all acts where such an intent
1
Mayuri Pulse Mills v. Union of India, (1995) 1 BC 229 at 235.
is not present. Even where the definition is silent regarding intent, it has been held that on
general principles an evil intent must be imported into the definitions of all strictly criminal
offences.

The general doctrine of mens rea is not of very great importance where, as in India, the law is
codified and offences are carefully defined so as to include the mens rea in the definition itself.
The definitions in the Indian penal code along with the chapter of general exceptions are perhaps
sufficient to exclude all cases to which a mens rea cannot be attributed. IPC defies offences with
great care and precision and the chapter in general exceptions is very comprehensive. If
definitions of offences are analyzed in IPC, they generally comprise the following principal
elements:

1. A human being,

2. An intention on the part of such a human being to cause a certain consequence

considered injurious to individuals or to society, which for the sake of brevity can be
called an evil intent,

3. The act willed,

4. The resultant evil consequence.

As to (b)-the evil intent- it is indicted generally by the use of such words as intentionally,
voluntarily, fraudulently, dishonestly, malignantly, wantonly, maliciously etc.

But there are a few cases where the words indicating intention are not used in defining an
offence. But these are either cases where the acts with their consequence are so harmful to the
state or society that it has been deemed just and expedient to punish them irrespective of any
intention to cause those consequences, or cases where the acts themselves are of such a character
that they raise a violent presumption that whoever willed the act must have intended the
consequences. Section 121 (Waging, or attempting to wage war, or abetting waging of war,
against the Government of India), 124A (Sedition), 359-363 (Kidnapping and Abduction) are
examples of former. While Section 232 (Counterfeiting Indian coin) is an example of later.

Analysis of IPC crimes suggest that these crimes are traditional common law offences that deal
with offences against the person, property, state and public morals. All these offences consist of
specific acts of aggression that have been recognised as crimes per se or mala in se as opposed
to mala prohibita. The distinction between an act that is malum in se and act that is malum in
prohibitum has been fully recognised in America where crimes have been defined according to
their nature into crimes mala in se and crimes mala prohibita.

Cases

In J. K. Industries Ltd. v. Chief Inspector of Factories and Boilers, the Supreme Court observed,

“The offences under the Act (the Factory Act 1948) are not a part of general penal
law but arise from the breach of a duty provided in a special beneficial social
defence legislation, which creates absolute or strict liability without proof of
any mens rea. The offences are strict statutory offences for which establishment
of mens rea is not an essential ingredient. The omission or commission of the
statutory breach is itself the offence. Similar type of offences based on the principle
of strict liability, which means liability without fault or mens rea, exist[s] in many
statutes relating to economic crimes as well as in laws concerning the industry, food
adulteration, prevention of pollution etc…”

The finding of this case was approved in the recent decision of Hemant Madhusudan Nerurkar v.
State of Jharkhand. In Union of India v. M/s Ganesh the court recognized three exceptions
of mens rea liability i.e. all cases of public nuisance; acts not criminal in the real sense but
prohibited in the public interest; and civil rights enforced through criminal law. The very strong
public interest clubbed with a comparatively moderate penalty justifies extending criminal
responsibility to cases where there is no mens rea.

Indian Courts have held that mens rea is an integral part of the definition of crime, hence
whenever there is no specific mention of it, courts presume its requirement unless a statute
expressly or by necessary implication exclude mens rea.

Indian courts have justified the non-requirement of mens rea on the grounds that many of the
Acts impose only payment of fines as punishment or even if imprisonment is provided, very
rarely do courts award it and conviction under public welfare offences does not attach to itself
the same kind of social stigma and damage to reputation that conviction under IPC would
attract.

Conclusion

General trend is seen that modern legislative bodies often choose not to create “true” crimes,
especially in the areas of traffic, liquor, purity of food, hunting, and narcotic offences, but rather
to enact statutes that do not require any proof of mens rea, as it is legislature’s interest in
promoting public safety that justifies strict regulation of acts that threaten that public safety.
India also seems to follow that path. Professor Jerome Hall has rightly preferred to call strict
liability offences as offences relating to ‘economic law’ or ‘administrative regulations’, instead
of penal offences.