The “Presence of the Accused” Requirement under Section 34 of the IPC: An Analysis

By: Ria Goyal


The Indian Penal Code (hereinafter referred to as “IPC” or “the Code”) contains several provisions imposing joint or constructing liability upon members of groups for criminal acts committed in furtherance of common intention. These sections do not create any distinctive offences – rather, they act as evidentiary principles rendering every person involved responsible for the criminal act committed by any one of them in situations wherein the exact role of each is hard to determine. The phrase “in furtherance of common intention”, however, is vague and has been interpreted by Indian courts in alarmingly different ways over the years. The aspect that most authorities are divided over when it comes to determining whether common intention exists or not is the requirement of the presence of the accused.

While some courts have held a presence at the place of occurrence of the crime to be a requirement for establishing common intention under Section 34 of the IPC, others have decided otherwise, holding liable even those persons that were not present when the actual crime took place. It is pertinent to take a look at these varying pronouncements to understand the judicial position on the matter.

Divisive Positions Taken by the Courts

In Emperor vs Barendra Kumar Ghosh, though the court did not directly deal with the question of whether the presence of the accused is a necessary requirement under Section 34 of the IPC, it shed light on the “presumption of participation in the commission of the crime” that arises when presence is coupled with any act amounting to abetment. The court referred to Section 114 of the IPC, according to which, an abettor who is present during the commission of the offence will be punished for the commission of the offence rather than its abetment, and used this to establish that the case fell within the ambit of Section 34. Both these sections essentially serve to impose the punishment for commission of the offence upon persons who have not committed the act, and by using 114 to bring the case within the ambit of Section 34, the court indirectly made the presence of the accused at the time of commission of the offence a pre-requisite to be proved.

The Supreme Court in Shreekantiah Ramayyia Munipalli and Anr. vs State of Bombay came to a similar conclusion. Herein, the accused had argued that since he was not present at the time of commission of the offence, he could not be liable under Section 34. He was convicted by the Additional Sessions Judge who ruled that a person doesn’t need to be present when the offence is actually committed in order to attract culpability under the section. Only common intention needs to be proved. The Supreme Court, however, rejected this ruling and held that the very essence of Section 34 is that the person must be physically present at the scene of commission of the crime. The proximity to the actual scene may be irrelevant but presence is necessary.

In the case of Ramaswami Ayyangar & Ors. vs State of Tamil Nadu, it was stated that Section 34 must be read with Section 33 of the Code, which clarifies that an “act” includes a series of acts – therefore, different acts may be committed by different members of a group but still form part of a single criminal enterprise with common design. Moreover, it was held that since this particular case involved physical violence, the accused must be physically present during the commission of the criminal act for them to be liable under Section 34. This presence by itself would amount to participation.

A completely different position was taken in the case Tukaram Ganpat Pandare vs State of Maharashtra. Here, the court observed that mere distance does not free one from liability under Section 34, essentially implying that presence at the scene of commission of the criminal act is not a necessary requirement to prove common intention. Rather, the essence of the section is a “criminal sharing” which may be evidenced either through active presence or even with distance. This was followed in Suresh vs State of Uttar Pradesh wherein the mere presence of the accused was held to be insufficient for establishing common intention.

Another case in which courts diverted from their earlier stand of presence being a necessary requirement is Prakash v. State of Madhya Pradesh. Here, it was noted that while the presence of accomplices at the time of commission may provide support and encouragement to the accused, it is not necessary for presence at the scene of crime to be proved in order to attract culpability under Section 34. The accused can aid the occurrence of the crime even from a distance. In some cases, presence may be construed to be participation, as has been held in several cases; however, it is not a necessary pre-requisite for the imposition of joint liability. All in all, common intention has to be determined in light of the facts and circumstances of each case.

The most recent case in this matter was Jasdeep Singh vs State of Punjab wherein the Supreme Court acknowledged that the presence of accused is generally required under Section 34, especially in cases relating to exhortation or instigation. Nevertheless, this does not apply to all cases – when the offense comprises of different acts done at different times and places, the common intention still may be construed and Section 34 applied. To come to this conclusion, the court took support from Section 33 of IPC which brings a series of acts within the ambit of a single act. This is how Section 34 would be attracted – by considering a series of different acts done by several persons to be a single act which counts as an offence. Another way the court explained this is through an analogy wherein it compared the team effort in a football game to the one required to be proved under Section 34. A game of football involves people in different positions, i.e., keeper, striker, defender, and so on; each player performs a distinct act assigned to him, but in the end, the common result is borne by them all. This is the same logic applied when using Section 34 to hold those sharing common intention liable for a criminal act. Therefore, the court took the view that participating and intention in action are the vital features of Section 34, and that participation does not necessarily have to be through physical presence.

Analysis & Concluding Remarks

Although Indian courts are divided on this issue, there is increasing cognizance of the fact that it is possible to participate in the commission of offences even from distance. The recent SC judgment was a step in the right direction since it also took note of the fact that not all criminal acts are straightforward – different locations, people, and times are often involved. Thus, the determination of common intention cannot be reduced to mere presence, nor can the lack ofpresence be construed as a lack of participation. The common intention may manifest itself in a variety of ways; while presence is surely a relevant factor to be considered, the act and intention of each of the accused have to be considered in light of the facts and circumstances of the case. With the advent of modern technology, it is not unthinkable that crimes may be assisted even from a distance. Modes of communication have advanced and maintaining the position that presence of the accused is necessary for proving common intention could lead to the perversion of justice.

[The author is a second-year law student at Maharashtra National Law University, Mumbai.]

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s