Section 34 and Section 149 Indian Penal Code

 

Q-Define Section 34, and Section 149.

Or

Differentiate between common intention and common object.

Or

Explain the law relating to joint offenders under the IPC.OrExplain the facts and principles laid down in Barendra Kumar Ghosh V/sEmperor (AIR 1925 PC 1)

 

Answer;

 

Introduction;

 

The general principal of Criminal Liability is that, it is the primary responsibility of the person who actually commits an offence and only that person who has committed crime can be held guilty. However constructive liability may arise under the Indian Penal Code, 1860

A person may be constructively liable for an offence which he did not actually commit.

 

These persons, although, not positively participate in the commission of the offence, but they actively participate in occurrence of the offence;

a)    By Sharing Common Intention as suggested as defied U/sec. 34 of The IPC;

b)   Or b) By way of Common Object as suggested and defined U/sec. 149 of The IPC;

c)    Or c) By way of Criminal Conspiracy as suggested and defined U/Sec. 120A of The IPC.

 

There is a close resemblance between common intention and common object. Both of them belong to a different categories of offence in criminal law.

 

Sec 34 and sec 149 of Ipc embodies the rule of constructive liability which means that a person is liable for the consequences of an act of another person but sec 34 and sec 149 should not be mixed up together. The rule of common intention in sec 34 and sec 149 are not synonymous in any way and they have got their distinguishable features. The sec-34 of IPC explain the principle of joint liability in doing the criminal act with common intention. A joint liability of a person determined according to the manner in which he associate with constitution of crime.

 

RELEVANT PROVISIONS:

 

·                     Sec 34 for Common Intention

·                     Sec 149 for Common Object

 

The Principle of Common Intention:

·         Section 34 of IPC is related with doctrine of common intention.

 

·         Section 34 - Acts done by several persons in Furtherance of Common Intention: "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."

 

 Essential ingredient of S.34:

1.    There must be two or more persons.

2.   They must have a common intention.

3.   The act is done in furtherance of common intention of all.Cases:

 

If the above conditions are satisfied, each of the accused person would be liable for the resulted Criminal Act as if it were done by him alone. Common Intention

 

Common intention

1.   Common intention means following:

a) Concerted action.

 b) Knowledge of each other's intention and sharing thereof.

 c) Prior meeting of minds.

 

2)Common intention is essential ingredient of Sec. 34. Common Intention must not be confused with same or similar intention.

3) Presence of common intention is a question of facts and circumstances.

 4) Common intention must be strictly proved. Courts cannot infer common intention readily.

 

Difference between Common intention, same or similar intention

1) In Mehboob Shah case , it was held that common intention and same intention are different. The difference or distinction may be few but it is real and substantial.

2) Sec. 34 requires common intention. Concerted Action is the essence of the term. In case of same or similar intention there is no concerted action.

1) Sec. 34 does not create any offence. It is a deemed provision and not a penal provision. It only provides for a rule of evidence.

2) Since Sec. 34 does not create any substantive offence no charge is required to be framed U/s 34

 

Furtherance of Common Intention

1) Presence of common intention is not enough. Its furtherance must also be proved.

 2) Furtherance suggests participation or performance of some role. It was held that in a planned murder, one of the persons played the role of keeping of people from coming to the rescue of deceased. He and others were held guilty of murder u/s 302 read with Section 34.

3) It is not necessary that the roles should be same. Acts of the accused persons may differ.

 4) Word 'Furtherance' enlarges the scope of Sec. 34. The accused persons would be liable for a criminal act done in furtherance of common intention though it is different from what was commonly intended.

 5) Where one of the accused persons develops an independent intention, the act done in furtherance thereof shall be his individual act and other co-accused persons would not be liable.

 6) In the case of Barendra Kumar Ghosh vs. Emperor 52 IA 4014 (PC) : That act refers to the 'Criminal act' used in Section 34 which means the unity of criminal behaviour which results in some thing for which an individual would be punishable if it were all done by himself alone in an offence. Even if the appealant did nothing as he stood outside the door it is to be remembered that in crimes as in other things "they also serve who only stand and wait."

 7) In the case of Mehboob Shah vs. Emperor AIR 1945 PC 118: Common intention implies a pre arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group

Common Intention Must Precede the Criminal Act

1.   Common intention must precede the criminal Act; the time interval between them may be narrow or 7 wide.

2.    In the case of Ram Chander vs. State of Rajasthan 1970 Cr.L.J. 653: It is held that there need not be a long interval of time between the formation of the common intention and the doing of the Act.

3.     Common intention may develop even on the spur of momen

4.   Nandu rasto v/s state of Bihar:Criminal conspiracy is the essential ingredient of commonintention u/s34, of IPC. Participant in criminal act in some mannerwas also essential but physical presence at scene of occurrence isnot always necessary.

 

5.   Barendra Kumar Ghosh v/s Emperor:It has been observed that though the accused did not played anyrole to kill the post master but he was standing outside to – standand wait , which prove he was helping in the criminal conspiracy.

 

6.   •Private defense:In Subramanian v/s State of Tamil Nadu, -That if the appellant acted in exercise of their right of private defense of property it cannot be said that they committed a criminal act in furtherance of a common intention because it is protected u/s 96 of IPc.

 

Common object

 

Introduction : Section 149, like Section 34, is the other instance of constructive joint liability. Section 149 creates a specific offence.

One of the essential ingredient of Section 149 is that, the offence must have been committed by any member of unlawful assembly. Sec. 141 of The IPC makes it clear that, it is one of the essential condition of an unlawful assembly that its member must be more than

 

Principle of vicarious liability.

This section is the declaratory of theprinciple of vicarious liability of the members of an unlawful assemblyfor acts done in prosecution of common object of that assembly, all the members of that assembly will be vicariously liable for that offence evenone or more, but not all committed the said office.

 Common Object:- Section 149, like Section 34, is the other instance of constructive joint liability. Section 149 creates a specific offence. It runs as under:
“If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the assembly, is guilty of that offence.”

Elements Of Section 149:- The essence of offence under Section 149 is assembly of several (five or more) persons having one or more of the common objects mentioned in Section 141 and it could be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. Section 149 creates joint liability of all members of an unlawful assembly for criminal act done by any member in prosecution of the common object of the said assembly. So the essential ingredients of Section 149 are:

1. There must be an unlawful assembly, as defined in Section 141;

2. Criminal act must be done by any member of such assembly;

3. Act done is for prosecution of the common object of the assembly or such which was likely to be committed in prosecution of the common object;

4. Members have voluntarily joined the unlawful assembly and knew the common object of the assembly.

5. Mere presence and sharing of common object of the assembly makes a person liable for the offence committed even if he had no intention to commit that offence.

The Section is divided into two parts-

1.In Prosecution Of The Common Object:- The words “in prosecution of the common object” show that the offence committed was immediately connected with the common object of the unlawful assembly of which accused were members. The act must have been done with a view to accomplish the common object of the unlawful assembly.

2. 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 the situation is like “it will probably happen” or “may very well happen”. The word ‘knew’ indicates a state of mind at the time of commission of an offence, knowledge in this regard must be proved. The word ‘likely’ means some clear evidence that the unlawful assembly had such a knowledge.

 

 Difference between Section 34 and section 149 of IPC

 

 

Base	Section34	Section 149
Nature of Offense	This section is not a substantiveoffice it is only a role of evidence. it always read with other substantiveoffices. Punishment cannot be imposed solely upon this section .For example if a person convictedu/s 302 r/w 34 of IPC can legally beconvicted u/s 302 r/w 34	This section is a substantive offense, it alsoread with other sections. Punishment canbe imposed solely upon this section  Where as prosecution file a charge sheet u/ 149 the court me convert it to section 34 andimpose conviction
PRINCIPAL ELEMENT	The principal ingredient of the sec is common intention,any act which committed in	The principal sec is common object by the act which is committed in prosecution of common object which attract the section
Range of principal element	Common intention within the meaning of sec-34 is undefined and unlimited	Common object is defiend limited to five unlawful object stated in sec-141
Type of ofence	Common intention resulting under the section may be of any type/	Common object resulting under the sec one of the object mention in u/s-141 of IPC
Meaning	Criminal act is done by several persons in furtherance of Common intention	Five or more persons commit offence in prosecution of common object.
Definition:	Section 34 of the Indian Penal Code Defines Common Intention as, “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.	According to Section 149 of the Indian Penal Code If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
nacessity	In Common Intention, prior meeting of Mind is essential.	Prior meeting of Mind is not necessary.
Number of Persons	Number of Persons must be more than one.	Minimum numbers of Person must be five to constitute an unlawful assembly.
liable	All persons involved in the Commission of offence shall be equally liable	All persons may or may not be equally liable.

 

Difference between theft, extortion, robbery, and dacoity

 

Define and explain Theft. How is Theft different from Extortion? Under what circumstances Theft becomes Robbery? Can a man commit theft of his own property? Differentiate between Robbery and Dacoity.

Introduction:

Theft, Extortion, Robbery and Dacoity are offences in criminal law affecting the property of a person, defined in Sections 378 to 402 of the Indian Penal Code. On a prima facie basis they seem to be very much similar to each other, but on a closer look it may be found that there are slight differences which distinguish one from another.

Extortion is the offence carried out by overpowering the will of the owner, while theft is the offence which is committed without the consent of the owner. The offence of extortion occupies a middle place between theft and robbery. Robbery is a special and aggravated from of either theft orextortion and means felonious taking from the person of another or in his presence against his wall, by violence or putting him in fear, and it becomes dacoity when it iscommitted by five or more person co-jointly

 

Relevant Provision:
sSection 378 and 379 for theft

Section 383 and 379 for Extortion
Section 390 and 392 for Robbery.
Section 391 and 395 for Dacoity

Theft
In general, theft is committed when a person's property is taken without his consent by someone.

 For example, A enters the house of B and takes B's watch without B seeing and puts it in his pocket with an intention to take it for himself

. Section 378 of IPC defines theft as follows - 

Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

Ingredients Of Theft:
In order to constitute theft, following factors are essential.
(i) Dishonest intention to take property
(ii) Property must be moveable
(iii) That should be in possession of other person
(iv) There must be removal or moving of that property
(v) Without consent of the owner

Case Law 

·         2000 MLD 651
It was held that person found guilty of offence of theft u/s 397 can not Simultaneously be convicted u/s 411 of P.P.C

·         It was also held in the case of Ram Ratan Alias Ratan Ahir & Anr. vs The State Of Bihar And Anr[4] that, for the crime of theft, a mala fide intention is a must. Without a mala fideintention, a person cannot be convicted under Section 378.

·         Pyarelal Bhargava v. State

 a &ovt. employee too a file from the &ovt. office, presented it to 3, and brou&ht it bac to the office after two days. It was held that permanent tain& of the property is not re4uired, even a temporary movement of the property with dishonest intention is enou&hand thus this was theft.

Theft of one's own property
As per the definition of theft given in section 378, it is not the ownership but the possession of the property that is important. A person may be a legal owner of a property but if that property is in possession, legally valid or invalid, of another, it is possible for the owner to commit theft of his own property. This is explained in illustration j of section 378 - A gives his watch to B for repairs. B repairs the watch but A does not pay the repairing charges, because of which B does not return the watch as a security. A forcibly takes his watch from B. Here, A is guilty of theft of his own watch.
Further, in illustration k, A pawns his watch to B. He takes it out of B's possession, having not payed to B what he borrowed by pawning it, without B's consent. Thus, he commits theft of his own property in as much as he takes it dishonestly.
In Rama's Case 1956, a person's cattle was attached by the court and entrusted with another. He took  the cattle out of the trustee's possession without recourse of the court. He was held guilty of theft.

Extortion U/sec 383:
In Extortion, a person takes the property of another by threat without any legal justification.

Section 383 defines extortion as follows - 
Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed, which may be converted into a valuable security, commits extortion.
essential ingredients

1.   Intentionally puts any person in fear of injury 

2.   Dishonestly induces a person so put in fear to deliver to any person any property

 

 example,  

·         A threatens to publish a defamatory libel about B unless B gives him money. A has committed extortion.

·         A threatens B that he will keep B's child in wrongful confinement, unless B will sign and deliver to A a promissory note binding B to pay certain moneys to A. B signs and delivers such noted. A has committed extortion.

In Romesh Chandra Arora's case 1960, the accused took a photograph of a naked boy and a girl by compelling them to take off their clothes and extorted money from them by threatening to publish the photograph. He was held guilty of extortion.

In R S Nayak vs A R Antuley and another AIR 1986, it was held that for extortion, fear or threat must be used. In this case, chief minister A R Antuley asked the sugar cooperatives, whose cases were pending before the govt. for consideration, to donate money and promised to look into their cases. It was held that there was no fear of injury or threat and so it was not extortion.

·         THEFT- 1.   CONSENT – In Theft the accused takes the property without any consent.   2.   FORCE       – No force is used in Theft.   3.   PROPERTY- Theft can be committed only of a movable property.   4.   FACTOR OF FEAR-  No fear factor arises.   5.   DELIVERY- No delivery by the victim is made in a Theft.

·         EXTORTION- CONSENT – In Extortion the consent is obtained by the accused wrongfully.   FORCE       – Force is used initiating a fear of injury.   PROPERTY- In an extortion, property can be movable, immovable and even document.   FACTOR OF FEAR – Fear does exist in extortion.       DELIVERY- There is a delivery by the victim (Complainant

 

Conclusion:
that the offence of theft and extortion are offence against property. Extortion is the offence which occupies a middle place between theft and robbery as the element of force is present in this offence, which is missing in the offence of theft.

Robbery:-

Section 390 says, “In all robbery, there is either theft or extortion” and goes on to define when theft is robbery and when extortion is robbery.

Thus, a theft becomes a robbery when the following two additional conditions are satisfied:-

when someone voluntarily causes or attempts to cause,
(i) death , hurt , or wrongful restraint , or
(ii) fear of instant death , instant hurt , or instant wrongful restraint

 the above act is done
a. in order to the committing of theft ,or
b. committing theft , or
c. carrying away or attempting to carry away property obtained by theft.

An extortion becomes a robbery when the following three additional conditions are satisfied:-

1.  when a person commits extortion by putting another person in fear of instant death, hurt, or wrongful restraint, and

2.  such a person induces the person put in such fear to deliver the property then and there and

3.  the offender is in the presence of the person put in such fear at the time of extortion.

·      In Shikandar vs State 1984, the accused attacked his victim by knife many times and succeeded in acquiring the ear rings and key from her salwar. He was held guilty of robbery

Thus, robbery is the aggravated form of theft or extortion. It is different from theft and extortion as there is the element of instant harm is involved in robbery, which is not an ingredient of simple theft or extortion.

Dacoity:-

The essential ingredients of Dacoity are:

(i) five or more persons must act in association;

(ii) such act must be robbery or attempt to commit robbery; and

(iii) the five persons must consists of those who themselves commit or attempt to commit robbery or those who are present and aid the principal actors in the commission or attempt of such robbery.¹²

The essential ingredient that differentiates dacoity from the above the number of persons involved in association. In fact, however, dacoity may be called ‘robbery with five or more persons’.

·         In Ram Chand's case 1932, it was held that the resistance of the victim is not necessary. The victims, seeing a large number of offenders, did not resist and no force or threat was used but the offenders were still held guilty of dacoity.

·         In Ghamandi's case 1970, it was held that less than five persons can also be convicted of dacoity if it is proved as a fact that there were more than 5 people who committed the offence by only less than five were identified. 

Difference between Theft, Extortion, Robbery and Dacoity:-

Therefore, we may distinguish between theft, extortion, robbery and extortion on the basis of their definitions provided in the Indian Penal Code.

In case of theft, movable property is taken away without owner’s consent; in case of extortion, consent of the person is obtained wrongfully by coercion; in case of robbery, the offender takes property without consent, robbery being the aggravated form of theft or extortion and in the case of dacoity also, there is no consent or it is obtained wrongfully.

Theft may occur only of movable property whereas, extortion may occur of movable or immovable property, and in the case of both robbery and dacoity, it may be committed with respect to immovable property, where it is in the form of extortion and not otherwise. There is no element of force or compulsion, in case of theft; force or compulsion exist in extortion, the person being put in fear of injury to himself or to any other persons.

There is no delivery of property by the victim, in theft; whereas there is delivery in extortion; in case of robbery and dacoity, there is no delivery if theft occurs during the course of robbery or dacoity.

Punishment for theft is imprisonment of either description for a term which may extend to three years, or with fine or with both (Section 379). Punishment for extortion is imprisonment of either description for a term which may extend to three years, or with fine, or with both (Section 384). Punishment for robbery is rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if the robbery be committed on the highway between sunset and sunrise it may be extended to fourteen years (Section 392). Punishment for dacoity imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine (Section 395).

heft	Extortion	Robbery	Dacoity
Movable property is taken away without owners consent in theft	Consent of the person is obtained wrongfully by coercion	The offender takes property without consent, robbery being the aggravated form of theft or extortion	There is no consent or it is obtained wrongly
Theft is of movable property only	It may be movable or immovable property	Robbery may be committed in respect of immovable property where it is in the form of extortion, but not otherwise	Dacoity may be committed in respect of immovable property where it is in the form of extortion but not otherwise
It can be committed by one person	It can be committed by one or more	It can be committed by one or more persons	To commit the offence of dacoity, there must be at- least five persons or more
There is no element of force or compulsion	Force or compulsion exists in extortion, the person being put in fear of injury to himself or to any other persons	Force may or may not be used	Force may or may not be used
Element of fear is absent	Element of fear is present	Element of fear exists if robbery is a form of extor­tion, otherwise not	Element of force exists in dacoity

 

Thee is no delivery of property by the victim	There is delivery of property	There is no delivery of property in robbery if theft is committed in the course of robbery	There is no delivery of property in dacoity if theft is committed in the course of dacoity
Punished with imprison­ment of either description for a term which may extend to three years, or with fine or with both (Section 379)	Punished with imprison­ment of either description for a term which may extend to three years, or with fine, or with both (Section 384)	Punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if the robbery be committed on the highway between sun­set and sunrise it may be extended to fourteen years (Section 392)	Punished with imprisonment for life, or with rigoro us imprisonment for a term which may extend to ten years, and shall also be liable to fine (Section 395)

 

Draft of Demand Notice under Section 138 of the Negotiable Instrument Act 1881

 

DRAFT OF DEMAND NOTICE UNDER SECTION 138 OF N.I ACT

TO

……………………..,

………………………………..,

………………………………,

SUBJECT- NOTICE OF DEMAND U/S 138 OF NEGOTIABLE INSTRUMENT ACT 1881

Sir,

Under the instructions from my client ............S/o.........................Residing at .................I give the folllowing notice.

1.   That, my client is having business in ......................running a shop at............

 

2.   That you came to my client on.............and I purchased the following goods as specified infra, (specify the details of goods purchased).

 

3.   That you promised to repay the amount of Rs.....the price of the goods purchased by you from my client on.............and amount is Rs.........

 

4.   That you issued a cheque bearing No..............dated...........to be drawn on.............Bank, for Rs.............which represents the amount due to be paid to my client because of the purchase of aforesaid goods.

 

5.   My client states that he had presented the cheque on..................for encashent but the same was dishonoured with an endorsement that there are insufficient funds on....................

 

6.   That my client however is reserving his right to file a criminal complaint also by issuing appropriate legal notice in this regard.

 

7.   My client also states that you are liable to pay the aforesaid amount with interest thereon up-to-date and though my client requested you on several occasions personally and through mediators, you are not inclined to repay the same.

 

8.   I therefore call upon on behalf of my client to repay the amount due specified in the notice within a period of fifteen days from the date of receipt of the notice failing which my client will be constrained to take necessary legal action for recovery of amount due from you. My client hopes that you may not invite such litigation which may be an unwanted litigation in the circumstances of the case.

 

9.   This is without prejudice to all other legal rights and remedies available to our client for the above-stated purpose.

 

NOTE: Copy of this notice is retained in the office of the under signed for further legal action in case of non-compliance of demand of present legal notice. 

 

PLACE

DATED- ………………………

 

 

……………………………………

(ADVOCATES)