Top
Begin typing your search above and press return to search.
Columns

An Overview Of Vicarious Liability Under Section 149 Of IPC

S.Nagamuthu
8 April 2021 3:53 AM GMT
An Overview Of Vicarious Liability Under Section 149 Of IPC
x

An "Offence" shall mean any act or omission made punishable by any law for the time being in force as defined in Section 3(38) of the General Clauses Act. Section 40 of the Indian Penal Code, inter alia, defines the word "Offence" denoting a thing made punishable by this Code. Article 20(1) of the Indian Constitution by guaranteeing as a fundamental right, mandates that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. From these statutory definitions and the Constitutional protection, it is manifestly clear that a person can be punished for an act or omission done by him which is forbidden by law and made punishable under a Penal law. In other words, for the act or omission committed by someone else, he cannot be punished. The Doctrine of Vicarious Liability is applicable to Civil Law. But the Criminal Law, being in the nature of depriving a person of his freedom, personal liberty and life, therefore, does not recognise the said doctrine into its ambit except in certain specific contingencies. But it is regrettable that, of late, a wrong trend is being set to blindly apply the said Doctrine to Criminal cases and to punish persons for the offences that they have not committed at all. This trend is truly dangerous to the human values and rights and it may result in disorderliness in the society. This trend has surfaced, perhaps, because of the lack of understanding of the first principles of Criminal Law, more particularly, the principles underlying in Sections 34, 149, 120B and 109 of IPC.

Section 34 of IPC does not speak of vicarious liability at all as it is understood erroneously in some quarters. It speaks only of a joint liability in the doing of a criminal act. One should not forget that this provision is not a substantive Penal provision and it is only a rule of evidence. When this provision has been rightly understood as a rule of evidence, it is fallacious to say that it provides for punishment vicariously for the offence committed by someone else. Even the Supreme Court, in some judgements, has, freely, under a mistaken notion, read the doctrine of "Vicarious liability" into Section 34 of IPC as if the said provision creates such a liability. A close reading of this provision would expose the error in the notion. It is for the doing of an act or omission by each accused towards the accomplishment of the commonly intended act (offence) all of them are jointly held liable for punishment. In order to invoke Section 34 of IPC as against a person or persons, it should be first of all established that they shared a common intention to commit an act which in turn is an offence. Two or more persons may have similar intention to do an act that is an offence. In order to crystallise such similar intention into a common intention those persons must have shared their individual intentions so as to make it common to all. Unless such common intention to commit an act, which is punishable, is established, Section 34 of IPC cannot be invoked against any of the persons in the group. Secondly, in furtherance of the said common intention, everyone who shared the common intention, should have done an act or omission. Such acts committed by all of them should constitute a larger single act which is punishable as an offence. In other words, a very small act or omission committed by anyone in the group may or may not, by itself, be a punishable offence. For the cumulative major act of which his act/ omission must be a part, he is liable for punishment on the fiction that he alone has committed the larger cumulative act which is an offence. Here, by a fiction the law declares that the larger cumulative act, which is an offence, was committed by each accused alone. This legal fiction may be difficult to understand without an illustration. Therefore, the following illustration is given to make the understanding easier.

Illustration: There are five enemies to the deceased. Each one has the intention to cause the death of their common enemy/ the deceased. The intention of each one remains an individual intention until they share the same among themselves. If they sit together and share their individual intention to kill and make it common, there emerges an agreement to cause the death of their common enemy. This agreement makes out an offence of conspiracy. On the next day, as agreed upon earlier, all the five accused, armed with weapons, go to the place of their common enemy. One person stands outside to alarm the others. This is an act committed by the said person which by itself may not constitute an offence. The other four accused go into the house where one person prevents the other inmates in house from rescuing the deceased. But he does not cause any bodily injury on the deceased. Out of the other three, one person catches hold of the deceased and he also does not cause any bodily injury to him. The fourth person causes a minor injury on the hip of the deceased. The fifth person cuts the neck of the deceased and severs the head. Here, who caused the death which is an offence of culpable homicide or murder? Undoubtedly, it is the fifth person. The others have not caused the death of the deceased. Section 299 of IPC starts with the phrase "whoever causes the death by doing an act". The persons, except the fifth one, have not caused the death of the deceased. But, as per the legal fiction under Section 34 of IPC, it is as though every one of them caused the death. This is because each one did an act or omission in furtherance of their common intention to cause the death of the deceased. In this illustration, by raising the fiction, who caused the death? The answer is, A1 alone caused the death, A2 alone caused the death, A3 alone caused the death, A4 alone caused the death and A5 alone caused the death though as a matter of fact A5 alone caused the death. Therefore, each one is liable for punishment for culpable homicide or murder. This is the rule of evidence adumbrated in Section 34 IPC. In the absence of participation in action by doing an act or omission in furtherance of the common intention, Section 34 IPC cannot be invoked. Irrespective of the nature of the individual overt act, whether minor or grave, if there is proof that the said act/ omission was in furtherance of the common intention, each one is to be punished for the ultimate cumulative act (Culpable Homicide/ Murder) that was intended. Section 34 IPC prescribes the participation of minimum of two persons, but it does not prescribe the maximum. But there is a tendency to frame charges by invoking section 34 IPC if there are less than four persons only. On the other hand, if there are five or more persons, the tendency is to invoke section 149 IPC. This happens because of lack of understanding of the fundamental principle that section 34 IPC is a rule of evidence whereas Section 149 IPC is an offence by itself and that they apply in different situations.

Section 149 IPC recognises the doctrine of vicarious liability into the criminal law. Unless the sweep and ambit of Section 149 IPC is thoroughly understood miscarriage of justice may result. Simply because there are five or more persons forming a crowd, Section 149 IPC cannot be invoked to punish them. Such punishment is an affront to Article 20(1) and Article 21 of the Constitution besides being a grave human rights violation. A crowd to become an assembly, there should be a common purpose in assembling. An assembly to become an unlawful assembly in terms of Section 141 IPC, an assembly of five or more persons should have in common anyone or more of the objects enumerated in section 141 of IPC. If the object of the assembly does not fall under any one or more of the five objects enumerated in Section 141 of IPC, though it is an assembly, it is not an unlawful assembly so as to invoke Section 149 IPC.

Section 149 of IPC is one of the offences against the Public tranquillity contained in Chapter XVIII. This Chapter consists of as many as Twenty-Two Sections of which Sections 143, 144, 145, 147, 148, 149, 151, 152, 153, 153-A, 154-AA, 153-B, 156, 157, 158 and 160 are the Penal provisions which provide for punishment of the respective offence against public tranquillity. To punish a person under Sections 143, 144, 145, 147, 148, 149, 150 and 152, first of all there should be an "unlawful assembly "as defined in Section 141 of IPC. If only the common object of the persons composing that assembly is any one or more of the five "objects" enumerated in Section 141, then the assembly is unlawful and therefore, any member of such assembly may be punished under the above Penal provisions respectively. For our discussion, Clause "Third" of Section 141 of IPC is relevant. In order to bring it within the purview of Clause "Third", the object of the assembly must be to commit any mischief or criminal trespass "or any other offence". The expressions mischief and criminal trespass have been defined in Section 425 and 441 IPC. The next category in this Clause is defined by the expression "or other offence". The interpretation of this expression "or other offence" is engaging the courts in India and in some of the common law countries for more than a century. One school of thought is that contextually, this expression "or other offence" should receive restricted meaning by applying the Doctrine of ejusdem generis. The term ejusdem generis" is a Latin term which means "of the same kind". In Halsbury's Laws of England, the rule of "Ejusdem Generis" is explained thus. "As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction, must be applied with caution and subject to the primary rule that statutes are to be construed in accordance with the intention of the parliament. For the ejusdem generis rule to apply, the specific words must constitute a category, class, or genus, then only things which belong to that category, class or genus fall within the general words." Where a law lists specific classes of persons, things, or events and then refers to them in general, the general term would only apply to the same kind of persons, things or events specifically listed. For example, if the provision states that tax shall be levied on cars, lorries, busses, motorcycles or other vehicles, the term other vehicles shall not include aeroplanes, ships, motorboats, and bicycles. It may include an autorickshaw. The commonality among the vehicles enumerated in the provision is that they are propelled by motors and they run on roads. An auto rickshaw is a vehicle propelled by a motor and runs on the road and therefore, applying ejusdem generis, autorickshaw is also liable for tax. Bicycles though run-on roads are not propelled by motors and aeroplanes, ships and motorboats, though propelled by motors, they do not run-on roads. Therefore, applying the rule of ejusdem generis these vehicles shall not be included for the purpose of tax. Having understood this doctrine succinctly, if we look at Clause "Third" of section 141, this list of offences enumerated therein are offences against property and capable of affecting public tranquillity. Therefore, the expression "or other offence" should mean an offence which should be of similar category of offences specified. Thus, applying the rule of ejusdem generis the expression "or other offence" should be construed to mean any other offence against property and capable of affecting the public tranquillity. Thus, to bring an object within Clause "Third" of Section 141 of IPC, the above stated conditions are to be satisfied. Notwithstanding the fact that the object of the assembly is to commit an offence against property enumerated in Clause "Third, if the commission of the said offence is either not likely to affect or prejudice the public tranquillity or has not affected public tranquillity, the assembly is not unlawful and so Section 149 of IPC cannot be invoked. This can be explained more by the following illustration.

If five persons trespass into the house of the victim and cause damage to two articles worth Rs. 5000, at no stretch of imagination it can be said that the commission of the said offence of mischief is likely to cause or has caused disturbance/ prejudice to public tranquillity. Therefore, to convict these five persons, 149 IPC cannot be invoked because there is no unlawful assembly.

The Hon'ble Supreme Court in Manga @ Man Singh Vs. State of Uttarakhand (2013) 7 SCC 629, has interpreted the term "or other offence" to mean any offence punishable under IPC or any other law. The Supreme Court has rejected the argument that the rule of ejusdem generis is to be applied. The Supreme Court has however not considered that the second test is whether the offence is in the nature of affecting or prejudicing public tranquillity. This judgement, with great respect, has misdirected itself by simply referring to Section 40 of IPC which defines the term offence. Whether the legislature would have intended to give restrictive meaning to the general word by applying the rule of ejusdem generis or to give the natural broad meaning to the general word is a matter of inference. Had it been the intention of the legislature to give the fullest broad meaning to the expression "or other offence", there would have been no need to enumerate specified offences in Section 141 of IPC. For example, mischief and criminal trespass are also offences punishable under the IPC. As these two offences fall within the ambit of the expression "or other offence", the legislature need not have specifically mentioned these two offences in Clause "Third" of Section 141 of IPC. Instead, the legislature would have worded Section 141 of IPC in simple terms as follows:

"An assembly of five or more persons is designated as unlawful assembly, if the common object of the persons composing that assembly is "to commit any offence punishable under this code or under any other law".

The legislature need not have laboured to specify few offences alone in Section 141 of IPC. Thus, the legislature has identified certain offences which may affect or prejudice public tranquillity and specifically enumerated the same in sec 141 IPC. As it is difficult to have an exhaustive list, the legislature has used the general words "or other offence" leaving it to the wisdom of the court to include any similar offence which may affect or prejudice public tranquillity by applying the rule of ejusdem generis. Thus, it is easily deducible that the expression "or other offence" does not include every offence under the code or any other law as held in Manga's case. Thus, it is with great respect, the exposition of law in Manga's case is not correct and it requires reconsideration.

At this juncture, one more illustration may also be helpful. In a car, five persons were travelling with the object of creating a forged document on reaching their destination. The driver of the car drove the car in a rash and negligent manner and the inmates of the car knew that the car was likely to hit someone. The car hit a person and killed him. The question is, "Can these persons, including the driver, be called as the members of the unlawful assembly so as to punish the inmates of the car vicariously under Section 304 A of IPC by invoking Section 149 of IPC?" It is well known that the ultimate offence resulted might be the object of the assembly or that the members knew that it was likely to result. The facts in this illustration may fall under the second part of Section149 of IPC provided the assembly was unlawful. Thus, it will be imprudent to conclude that there was unlawful assembly construing the expression "or other offence" to mean an offence under Section 304A IPC also.

Similarly, if five people assemble at the house of the First accused with the object of forging a document by impersonation. Out of the five, one impersonates and forges the signature. Undoubtedly, all the five are to be punished for the offence of forgery. Can it be said that they constitute an unlawful assembly and so all should be punished by invoking Section 149 of IPC? The answer would be an emphatic "No", because the act of forgery committed would not cause any disturbance to public tranquillity. If not by invoking Section 149 IPC," How to convict them all for their participation in the commission of crime?" The solution is ready and simple. All the five people have shared their intention to forge, and they have participated in the commission of crime by being physically present aiding the accused who forged the signature. Therefore, all are to be punished by invoking Section 34 of IPC.

Section 34 of IPC and Section 149 of IPC do not overlap at all. They play their respective roles in different contexts and different factual situations. The subtle difference between these two provisions is often misquoted and seldom remembered which is evident from the fact that there is a tendency to invoke Section 149 IPC if there are five or more accused and to invoke Section 34 IPC if there are two or more accused but less than five. Lord Macaulay took much pains to impress upon the distinction between these two provisions by employing different expressions such as "in furtherance of the common intention" and "in prosecution of the common object". In the case of Section 34 IPC, the intended act should have been committed whereas in the case of Section 149 IPC, it is not necessary that the offence committed must have been the object of the assembly. For example, if five people assemble with the unlawful object of causing mischief by setting fire, even before they could set fire, the owner of the house emerges suddenly and prevents them from setting fire. One of the members of the assembly attacks him with a view to restrain him from preventing them to set fire. The man dies. The general public gather. As a result, the house could not be set on fire as per the object. But the likelyhood of causing of death was known to the members of the assembly. Therefore, as per the second part of Section 149 all are liable vicariously for the offence of Culpable Homicide/Murder. But, to invoke Section 34 IPC, every member should have some overt act or the other denoting participation in action which resulted in the larger act constituting an offence. But to invoke Section 149, there need not be any overt act for each member, and it would suffice that he continues to be a member of the unlawful assembly when the offence was committed.

Keeping the first principles, as discussed above in mind, let us now have a short survey of the judgements which have attempted to explain the concepts behind Section 34 and 149 IPC so as to avoid unjust convictions or unmerited acquittals. Precisely, this issue was engaging the Supreme Court of Singapore for quite some time. Section 143(c) of Singapore Penal Code is the verbatim reproduction of Clause "Third" of Section 141 of the Indian Penal Code. The definition of the offence made in Section 40 of Indian Penal Code is found in Section 40 of Singapore Penal Code. On a reference on account of the larger public interest, among other questions, the question whether the words "other offence" in Para (c) of Section 141 of the Penal Code would mean every offence under the Penal Code came up for consideration before a three-judge bench of the supreme Court of Singapore in Public Prosecutor Vs Fo Son Hing and others Reported in (1994) SGCA 86. Delivering the judgement of the majority, Justice L.P. Thean held that "other offence in Section 141(c) does not mean any offence under IPC or any of the offences punishable under any law falling within Section 40(3), nor does it mean or cover only an offence in which there must be present as an ingredient and element of violence or threatened violence. In our judgement, the "other offence" means an offence which by its nature inherently prejudices or affects public tranquillity. In our respectful view, this construction gives sense to the presence of the offences of "mischief" and "Criminal Trespass" in section 141(c) and at the same time it does not widen unnecessarily the ambit of "other offence" and render otiose the presence of "mischief" and "criminal trespass". The minority view of Chief Justice Yong PungHow was that the rule of ejusdem generis is not applicable and the expression "or other offence" would include every offence under the Penal Code.

The correctness of the majority view in the said judgement was examined by a Five judge bench of the Supreme Court of Singapore in Public Prosecutor Vs. Tan Meng Khin and others reported in (1995) SGCA 56. Chief Justice Yong Pung How, who delivered the minority judgement in Fo Son Hing case, this time delivered the Unanimous judgement reiterating his dissenting view in Fo Son Hing. The court recorded that if a genus could not be attached to the words "or other offences" it is hard to see how some other kind of circumscribed interpretation could be attached to those same words. Finally, it was concluded that the words "or other offence" in Section 141(c) of the Penal Code r/w Section 40 of the same Code also refer to any offence punishable by the Penal Code. Further, the Words "or other offence" in S 141(c) of the Penal Code do not refer to an offence which by its nature inherently prejudices or affects public tranquillity. Thus, the Supreme Court has rejected both arguments that the words "or other offence" should be given restricted meaning applying the rule of ejusdem generis and that the said offence by its nature should inherently prejudice or affect the public tranquillity.

Similar issue came up before a Full Bench of three judges of the Supreme Court of the island of Ceylon (Sri Lanka) as early as in 1915 in the King Vs. Suppar. The question before the full bench was whether the expression "other offence" in Section 138(3) of Ceylon Penal Code does not mean an offence ejusdem generis with those expressly mentioned in the Sub-Section. The earlier view in King V. Carupiah (1914) 17 NLR 383 was that that the rule of ejusdem generis is not applicable and therefore the expression "other offence" would receive wider meaning so as to include every offence under the Penal code. The full bench overruled the said view by majority.

Justice Periera, in his judgement, has concluded that the term "other offence" must be ejusdem generis otherwise the preceding enumeration was unnecessary. If the clause then means to commit any offence, why should it have specified of all, the two offences of "mischief and "criminal trespass". It is manifest that voluntarily causing hurt is not an offence ejusdem generis with mischief and criminal trespass. While concluding, he has said "if the absence of any reference to voluntarily causing hurt and other offences affecting the human body is an inadvertent omission, it is in the province of the legislature to supply the remedy."

Chief Justice Wood Renton, in his dissenting judgement, has held: "I think that the rule of ejusdem generis is excluded, not only by the considerations which I have already endeavoured to set forth but by the fact that it is not possible to find any group of offences ejusdem generis with mischief and criminal trespass that will furnish a satisfactory explanation of the words "other offence" in the "Third" Clause of Section 138. In conclusion he has said "It is scarcely credible that the legislature could have intended to penalise the act of a number of persons whose common object is to commit mischief by killing a cow and exempt from the consequences of unlawful assembly the conduct of the same persons if they waylaid a man on the highway with the intention of murdering him or of causing him grievous hurt".

Justice Ennis. J in his separate judgement, by holding that the rule of ejusdem generis is not applicable, has held the view that the common object of the assembly is to commit an offence affecting public tranquillity then only the assembly is unlawful as defined in section 138 of Ceylon Penal Code. He has held "it was argued for the appellants that the general word following the specific words "to commit mischief or Criminal Trespass" must be construed ejusdem generis. I find it difficult in applying this rule, in that I cannot call to mind any offence under the code or any other law which can be said to be ejusdem generis with mischief and criminal trespass." In conclusion, he has held "now Chapter XVIII in which Section 138 appears relates to "offences against the public tranquillity". If this be taken as the scope of the legislation, it is possible to assign a reason for the specific mention of mischief and criminal force and to place a limit to the otherwise very extensive operation of Section 138. Mischief and criminal trespass, in so far as they provide for the protection of private rights, do not necessarily affect public tranquillity, but the express mention of these specific offences in Section 138 shows that the legislature intended to regard the commission of these offences by a number of persons acting in concert as a matter affecting public tranquillity. The use of general words in the section would be limited by the scope, and it would be a question in each particular case whether the common object of the assembly was to commit an offence affecting the public tranquillity". According to the learned judge, on case-to-case basis it is to be examined whether the offence which was the object of the assembly would affect or prejudice the public tranquillity.

From these judgements of the Supreme Court of Singapore and the Supreme Court of the island of Sri Lanka, it can be understood that it is not every offence which is the object of the assembly that makes the assembly unlawful. The true test is whether the commission of the offence that was the object of the assembly would affect or prejudice/has affected or prejudiced the public tranquillity. In each case, it is to be examined whether the commission of such offence by five or more persons would affect or prejudice/ has affected or prejudiced the public tranquillity. If the answer to this question is in the affirmative, then the assembly is unlawful and so, Section 149 IPC can be invoked. Thus, the rule of ejusdem generis is applicable to control the meaning of the expression "or other offence" which finds a place in clause "Third" of Section 141 of IPC.

Now let us come to the trend in India. A little research made shows that the interpretation of the expression "or other offence" was not made in the lines of argument stated supra until Manga @ Man Singh (2013 7 SCC 629) by a Two-Judge Bench. In Para 45 of the Judgement, the Hon'ble Supreme Court, after having extracted Sections 40 and 141 of IPC, without any further discussion, has adopted literal interpretation for the expression "other offence" as mentioned in Section 141 and has held that apart from the offence of mischief and criminal trespass, all other offences would fall within the said Clause. But the Court has not dealt with the question as to why the legislature has specifically mentioned mischief and criminal trespass when they themselves are offences as defined in Section 40 of IPC. Justice G.P. Singh in his celebrated work "Principles of Statutory Interpretation XI Edition" has opined, "due to the absurdity that is prevalent in literal rule of interpretation, the court may ascertain a literal meaning which was not intended by the legislature. If the court applies literal rule and feels that the interpretation is morally wrong, then they cannot avoid giving the interpretation". The Supreme Court has failed to note that had it been the intention to make every offence being the object of the assembly to make it unlawful, the enumeration of certain specified offences alone would have been required, instead the legislature would have simply stated that "if the object of the assembly is to commit an offence, the assembly is unlawful." This situation would manifestly demonstrate that the intention of the legislature is not to include every offence within the ambit of Section 141 IPC. The Supreme Court has also failed to note that the expression is "or other offence" and not "offence" or "any other offence". The conscious use of the word "other" needs to be noted. Therefore, the Supreme Court ought not to have adopted literal interpretation and instead would have applied the rule of ejusdem generis.

The Supreme Court in Para 45 has further gone to read Clause "Third" of 141 IPC along with Section 149 IPC and has concluded thus. "if the commission of another offence apart from mischief or Criminal trespass and such commission of offence was by a member of an unlawful assembly the prescription of common object will automatically get satisfied". Reading Section 141 IPC and 149 IPC together is against the rule of literal interpretation. Unless there is ambiguity in the language of Section 141 IPC there is no need or occasion to read Section 149 IPC together with Sec 141 IPC. The very fact that the Supreme Court has read Section 149 IPC with 141 IPC would show that in the opinion of the Supreme Court the language of Section 141 IPC is not clear and unambiguous. Therefore, the court should not have adopted literal interpretation.

By concluding in Para 45 that Section 141 of IPC requires only literal interpretation, the Court has restrained itself from considering any other rule of interpretation. But surprisingly, in Para 46 the Supreme Court has considered the principle of ejusdem generis forgetting for a moment that principle of ejusdem generis is an exception to literal interpretation. In Para 49, the Supreme Court has recorded thus. "We fail to appreciate as to how simply because the offences mischief or criminal trespass are used preceding the expression "other offence" in Section 141 "Third", it should be taken that such offence would only relate to a minor offence of mischief or trespass and that the expression other offence should be restricted only to that extent. As pointed by us above, in the offence of mischief and trespass could also be as grave as that of an offence of murder for which the punishment of life imprisonment can be imposed as provided under Sections 439, 449 and 450. Therefore, we straight away hold that the argument of the senior counsel for appellants to import the principle of ejusdem generis to Section 141 "third" cannot be accepted". From these articulations, it is obvious that the Supreme Court has gone by the punishment provided by the offence instead of applying the proper test as to whether the commission of the offence which is the object of the assembly would affect or prejudice the public tranquillity. If one has to go by the quantum of punishment as an element to interpret Section 141 of IPC, then,for possessing a counterfeit seal in the house by one person in the company of four of his family members knowing the same to be counterfeit, which is an offence punishable with imprisonment for life (vide Section 472 of IPC), the entire family members can be punished invoking Section 149 of IPC. The parliament would not have intended to punish the family members who were in assembly, living together. Thus, the approach of the Supreme Court and the reasons recoded in Para 49 of the Judgement are not, with great respect, correct.

The supreme Court further went on to refer to the main Clause of Section 40 which defines the expression "offence" and has recorded in Para 52 thus "Therefore, a conspectus reading of Section 40 makes the position abundantly clear that all the offences punishable under the Penal Code, main Clause of Section 40 would straight away apply in which event the expression other offence used in Section 141 "Third" will have to be construed as any offence for which punishment is prescribed under the code." Section 40 defines the expression offence not the expression other offence. It is nobody's case that "other offence" does not mean any offence at all. The question is what are the offences which fall within the ambit of the expression "or other offence" consciously used in Section 141 of IPC. The argument is that to fall within the ambit of the expression "or other offence", the offence should be in the nature of either affecting or prejudicing public tranquillity if committed by five or more persons. Therefore, the concluding remarks in Para 52 of the judgement also may not reflect the correct interpretation of the term.

Subsequently, the judgement in Manga @ Man Singh came to be referred to by another Two-Judge Bench in Vinubhai Ranchhodbhai Patel Vs. Rajivbhai dudabhai Patel and others (2018) 7 SCC 743. In this case, the Supreme Court referred to the much-celebrated case in Shambunath Singh Vs. State of Bihar in AIR 1960 SC 725 wherein the Supreme Court has explained the requirements of two conditions to convict a person on the principle of vicarious liability under Section 149 of IPC. But in this case, the Supreme Court had no occasion to interpret the expression "or other offence" in section 141 of IPC. There is a simple reference about Section 141 of IPC which has been recorded in the following words in Para 32, "the next step of inquiry is whether the common object of the unlawful assembly is one of the five enumerated objects specified under section 141 of IPC". The Supreme Court has then simply referred to the decision in Manga's case and followed. Thus, Vinubhai is not a precedent to interpret Clause "Third of Section 141 of IPC.

In view of the above inconsistencies in Manga @ Man Singh's case, and since there is no other case from the Supreme Court interpreting Clause "Third" of Section 141 of IPC and in the light of the decisions of foreign jurisdictions as referred to already, the decision in Manga @ Man Singh requires reconsideration. The fair procedure guaranteed under Article 21 of the Constitution mandates that a person is liable for conviction for the offence that he has committed. But Section 149 imposes punishment on the principle of vicarious liability for the offence committed by someone else who was a member of the unlawful assembly. Unless the concept of unlawful assembly as defined in Section 141 of IPC is fully understood and applied in a given case, there is a danger of an innocent person getting convicted for the the offence committed by someone else.

Criminal Law shall not allow liberal interpretation of Penal provisions for which section 141 IPC can't be an exception. Strict interpretation of Clause "Third" of Section 141 IPC contextually would lead only to interpretation that the expression "or other offence" would allow into its ambit only those offences which are in the nature of affecting or prejudicing the public tranquillity, if committed by five or more persons forming an assembly.

The propounders of liberal interpretations of Clause "Third" pf Section 141 of IPC express the apprehension that except the person who committed the offence, the others would easily escape from the clutches of law. This is a misplaced apprehension. Section 34, 109 and 120-B IPC also play a vital role in the matter of group liability. If the difference between these provisions vis-a-vis Section 141 IPC and the concept behind these provisions are understood and applied no person who deserves to be punished shall escape.

"Let Hundred Criminals escape but not one innocent convicted" is an age-old proverb. If the above provisions are understood and applied strictly in accordance with the intention of the legislature, one can be sure that "No Criminal shall escape, and every innocent shall be acquitted".

Views are Personal

The Author is a Senior Lawyer at Supreme Court of India

Next Story
Share it