Nanakchand was tried along with others on the charge of Section 302 IPC read with Section 149. At the end of the trial, the applicability of Section 149 was not established and the trial court convicted him under Section 302 read with Section 34, IPC. Whether the conviction is valid?

Question: Nanakchand was tried along with others on the charge of Section 302 IPC read with Section 149. At the end of the trial, the applicability of Section 149 was not established and the trial court convicted him under Section 302 read with Section 34, IPC. Whether the conviction is valid? Reply with reasons and support of leading cases. [U.P.C.J. 2013]

Find the answer only on Legal Bites. [Nanakchand was tried along with others on the charge of Section 302 IPC read with Section 149. At the end of the trial, the applicability of Section 149 was not established and the trial court convicted him under Section 302 read with Section 34, IPC. Whether the conviction is valid?]

Answer

The facts of the present case at hand are borrowed from the case of Nanak Chand v. State of Punjab, 1955 AIR 274. This case makes a clear distinction between the applicability of section 149 and section 34 of IPC in terms of whether they create a distinct offence to charge the accused separately.

Section 149 of the Indian Penal Code is to be found in Chapter VIII of that Code which deals with offences against the public tranquillity. Section 149 of the Indian Penal Code reads:-

“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”.

This section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence.

Under this section, a person, who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. Without the provisions of this section, a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly.

Therefore when the accused are acquitted of riot and the charge of being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed.

Moreover, section 34 reads:

“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”.

This section is merely explanatory. Several persons must be actuated by a common intention and when in furtherance of that common intention a criminal act is done by them, each of them is liable for that act as if the act had been done by him alone. This section does not create any specific offence.

As was pointed out by Lord Sumner in Barendra Kumar Ghosh v. Emperor(1925) I.L.R. 52 Cal. 197 “a criminal act means that, unity of criminal behaviour which results in something, for which an individual would be punishable if it were all done by himself alone, that is, in a criminal offence”.

There is a clear distinction between the provisions of sections 34 and 149 of the Indian Penal Code and the two sections are not to be confused. Participation of the individual offender in the criminal act in some form or the other is the leading feature of Section 34, IPC.

In a case before Calcutta High Court in Emperor v. Madan Mandal And Ors. (1914) ILR 41 Cal 662 it was opined that it will be illegal to convict an accused of the substantive offence under a section without a charge being framed if he was acquitted of the offence under that section read with section 149 of the Indian Penal Code.

Thus, applying the decisions of the Hon’ble courts to the present case at hand, it can be said that a person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed ‘as required by section 233 of the Code of Criminal Procedure. However, the accused can still be convicted under Section 302 read with Section 34, IPC because it is a condition precedent of Section 34, IPC that the individual offender must individually be a party to an intention that he must share in common with others.

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