By- Niharika Mukherjee
(This article forms the first part of a two part series)
Introduction
This article shall review the case of Barendra Kumar Ghosh v King Emperor, with a focus on its interpretation and application of Section 34 of the Indian Penal Code, 1860 [“IPC”]. In this part, the article shall, first, shall briefly present the facts and decision in the case. Secondly, it shall examine the development of the law, drawing from this decision, on the nature of participation required to hold an individual liable under Section 34.
Facts and Decision
As several facts in this case were disputed, they may be presented as follows. The case for the prosecution, at the trial court, stated the facts to be that on the day of the crime, the accused along with three other persons had reached a post-office armed with firearms. While the fourth person stood outside, the other three, including the accused, entered it and demanded money from the Post Master. Upon being verbally resisted by the latter, all three fired their weapons, with the result that one of the fired shots killed the Post Master. As the cry of the latter raised an alarm, all four men began to escape. The accused, while escaping, fired his pistol multiple times, and was eventually caught.
The case for the accused differed from this account on three counts. First, it was contended that the number of persons involved in the crime was three and not four, and the accused was, in fact, the man standing outside the post office; secondly, that he never fired at the deceased; thirdly, that he had been assured that no murder would be committed in this enterprise, and hence, did not intend to kill the deceased. This account was presented in a statement made by the accused in court, and he pleaded not guilty to the charge of murder, while pleading guilty to the charge of voluntarily causing grievous hurt under Section 394, with the reservation that he had not himself caused such hurt.
Given these differing accounts, the trial judge instructed the jury placing reliance on Section 34. It was stated, effectively, that regardless of whether or not the accused fired the fatal shot, if they were satisfied that the deceased was killed in ‘furtherance of the common intention of all’- that is, including that of the accused- then he must be held guilty of murder under Section 302 read with Section 34.
In the High Court, two challenges to this instruction were made by the defense- first, that the interpretation of Section 34 reflected in the instruction was mistaken, and secondly, that it did not appropriately deal with the accused’s abovementioned statement.
The former was made by drawing support from the Calcutta High Court’s decision in Emperor v Nirmal Kanta Roy. This decision had interpreted the Section to mean, in the context of murder, that the fatal act must be done by the accused for him to be liable under it. It would not, accordingly, suffice that he shared a common intention to kill with another person who actually did the fatal act- regardless of whether he had done some other act, in furtherance of the common intention, that did not prove fatal.
Both the defense arguments were refuted by the High Court, as also by the Privy Council in appeal. Here, Section 34 was interpreted more broadly, placing less emphasis on the accused’s own act- to mean that, for an individual to be liable under the Section, he need only have, first, shared a common intention with another person who did the fatal act (in the context of murder), and, secondly, done some ‘similar or diverse’ act in furtherance of the common intention. The Privy Council highlighted, as justification, both the authority of precedent, and that if Section 34 were to be construed as narrowly as the defense’s argument suggested, then the insertion of the words ‘in furtherance of the common intention of all’ by amendment would be redundant. The appeal, therefore, was dismissed.
While this decision is considered an authority for its interpretation of Section 34, this article argues that the development of law drawing from it gives rise to two concerns, which shall be discussed in the following sections.
Nature of Participation Required under Section 34
The first problem that has arisen in the interpretation of this judgement in later decisions has been that of what the nature of participation required under Section 34 is, that is, how the condition of a criminal act being ‘done’ under the Section is to be satisfied.
This article argues that the root of this problem lies in that, while the High Court opinions discussed a set of tests against which a particular act could be evaluated to see if ‘participation’ had occurred, the Privy Council failed to articulate the same.
Hence, on the one hand, the former examined various tests that could be used in such a determination, such as whether the accused was acting in execution of an established plan, or whether ‘he was so situated as to […] make his personal help available’ to the other persons involved. However, on the other hand, the Privy Council held the accused’s act of standing outside the post office in this case as ‘actual participation’ without providing a reasoned basis for doing so. More generally, the Privy Council characterized participation stating only that it be more than ‘mere bodily presence’ and that it could be ‘similar or diverse’ to the fatal act. Most significantly, however, it made a statement that has been noted in literature to have become an ‘axiomatic’ answer to the question of participation- that ‘in crimes […] they also serve who stand and wait’.
As a result of this omission and ambiguity in Privy Council’s decision in Barendra Kumar Ghosh, this article argues that while examples to the contrary exist, one set of cases has adopted an interpretation of Section 34 that deviates both from its text as well as the said decision.
It is submitted that in this set of cases, the emphasis laid by Barendra Kumar Ghosh on ‘common intention’ relative to the individual actions of the accused in relation to the result of the crime, has been taken out of context. While examples to the contrary exist, this set of judgements, drawing from the above-mentioned quotation from the Barendra Kumar Ghosh, have undermined the necessity of participation by the accused under the Section. It has been observed in Chhota Ahirwar v State of Madhya Pradesh, for instance, that ‘no overt act’ is required from the accused as long as he shares a common intention with others to commit the ‘ultimate criminal act’.
On this basis, the court in this case framed its inquiry under Section 34 solely as a question of whether there existed a ‘pre-arranged common intention’ to commit the offence. Hence, even though in Chhota Ahirwar the inquiry resulted in an acquittal, it may be noted that a conviction on this reasoning could have, in theory, amounted to penalizing an individual under Section 34- a Section embodying the principle of joint liability- even in the absence of any joint action involving him.
In a similar line of interpretation, another decision has stated that participation in the absence of common intention would not attract Section 34 (correctly, in line with Barendra Kumar Ghosh) but that common intention in the absence of an ‘overt act’ being attributed to the accused would attract the Section (an interpretation that cannot be attributed to the same).
Even while recognizing that the Privy Council was ambiguous in its description of the type of participation required, this article argues that to use the decision to hold that no ‘overt act’ is required under the Section, and further, to eliminate the inquiry into participation altogether, is to disregard even what was expressly mentioned by it. For instance, it fails to recognize that the point about possibility of participation taking diverse, if passive, forms was labored by the Privy Council to emphasize the distinction it sought to make from the interpretation adopted in Nirmal Kanta Roy. It also fails, for another, to recognize the clear distinction drawn by the Privy Council between ‘active participation’ and ‘mere bodily presence’ in a different part of the judgement. It is significant, in support of this criticism, for instance, that a different decision has expressly recognized that the mere proof of common intention would not sustain a conviction under Section 34, unless the accused himself participated in the criminal act in some way.
The contradictory positions taken in more recent decisions on the ‘overt act’ requirement must therefore, this article argues, be resolved in favor of an acknowledgement of the necessity of such an act by the accused under Section 34, in addition to a ‘common intention’. Additionally, the tests ideally applied to evaluate such an act should be such as were used by the High Court in Barendra Kumar Ghosh. This approach has, in fact, been followed in cases including Om Prakash v State, which, drawing from the said judgement, articulated a fairly productive test of ‘potential utility’ of the accused at the crime scene to determine whether their presence would amount to participation for the purposes of the Section.
In this light, the contention often advanced in literature that the decision is an authority for the idea that the ‘nature and degree’ of participation of the accused under Section 34 is ‘irrelevant’, must also be accepted only with some caution.
The author is a Third Year Student of National Law School Institute University, Bengaluru
The Criminal Law Blog 