A and B are said to have committed the offence of cheating under Section 420 IPC in furtherance of common intention (Section 34, IPC). The charge is framed against them by the trial court under Section 420, IPC. But after trial, the trial court convicts only… Is the conviction of A sustainable at law?

Question: A and B are said to have committed the offence of cheating under Section 420 IPC in furtherance of common intention (Section 34, IPC). The charge is framed against them by the trial court under Section 420, IPC. But after trial, the trial court convicts only A under Section 420 IPC.

A prefers an appeal for setting aside the conviction on the ground that while the charge was framed under Section 420 read with Section 34 of IPC, he alone cannot be convicted under Section 420 of IPC. Is the conviction of A sustainable at law? Give reasons and refer to the case law, if any, on the point.

Find the answer only on Legal Bites. [A and B are said to have committed the offence of cheating under Section 420 IPC in furtherance of common intention (Section 34, IPC). The charge is framed against them by the trial court under Section 420, IPC. But after trial, the trial court convicts only… Is the conviction of A sustainable at law?]

Answer

When a charge is framed with the application of Section 34, IPC the accused is informed that he is being charged with an offence in which he himself participated along with others. This is a necessary inference that follows from the provisions of Section 34, IPC itself, and, as everyone is presumed to know the law, the accused must know that when a charge with the aid of Section 34, IPC is recorded against him, and his individual role in the joint action is brought into the challenge [Om Prakash v. State, AIR 1956 All 241].

Section 34, IPC as the ‘common intention’ which permeates the criminal act and in furtherance of which the said act is done.

In order that an intention should be common, it should be attributable to every member of the group. This is also clarified by the fact that the section itself characterises the common intention to be the common intention of all. Section 34, IPC, therefore, does not ignore the intention of the individual offender.

It only adds some more persons to the commission of the offence and postulates that the same intention jointly existed in the mind of every individual member of the group as well. It may be that the intention was alleged to be common, but that only means that every member shared it along with others and not that some members shared it and others did not.

Thus, all that needs to be noted is that a person charged with the aid of Section 34 cannot say that the individual intention of the offender, whatever it might be, was not raised into controversy in such a charge or was immaterial to it.

Section 222, CrPC, which deals with the particulars of time, place and person to be mentioned in the charge, is as follows:

“The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was, committed, as are reasonably sufficient to giver the accused notice of the matter with which he is charged.”

This section specifies the facts necessary to be mentioned in the charge. It shows that all of them relate only to the particulars of the ‘offence’ committed, namely, the time of the offence, the place of the offence and the person against whom or the thing in respect of which the offence is committed. Section 34 does not create an offence and is, therefore, not touched by it.

Even if Section 34 were to be regarded as a part of the offence or a necessary particular required to be stated in the charge, then Section 225 of the Criminal Procedure Code which deals with the effect of such an error, has made an adequate provision for condoning such defects by providing as follows:

“No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice”.

Section 34, IPC does not create a distinct offence at all. The provisions of Sections 236, 237 and 238, CrPC are applicable to offences only. Strictly speaking, therefore, they would be applicable to cases under Section 149, IPC but not to cases under Section 34, IPC. Even presuming Section 34 to be creative of a distinct offence for the purpose of applying the principles underlying the aforesaid sections, it would appear that the conviction of the appellant would not be vitiated thereby.

Strictly speaking, when a person is charged with a substantive offence following the provisions of Section 34 of IPC, the ingredients of the substantive offence remain the same. The only difference is that instead of a single person A having committed an offence, the charge states that, a number of other persons say B and C also joined A in the commission of the same offence with a common intention.

In such a situation, Section 34, IPC, lays down a special principle of criminal liability and says that where a number of persons join together in committing the same offence with a common intention, each of them becomes liable to an enhanced penalty which is attachable in law to the result of the joint acts of all.

Where the case under Section 34, IPC, fails and the prosecution is able to establish its case only against a single offender, the prosecution cannot be said to have failed to prove the ingredients of the offence, but all that can be said to have failed to prove is the fact that some persons who are also alleged to have joined the accused with a common intention are not proved to have done so.

The effect, therefore, of mentioning Section 34, IPC is that the prosecution takes upon itself the responsibility of proving some additional facts with a view to make the accused liable for enhanced punishment. If therefore, the charge in respect of Section 34, IPC, fails because the prosecution is unable to prove those additional facts or particulars, there should be no reason why the conviction of the accused of the substantive offence should not be recorded where the prosecution has been able to prove all the facts needed to support the conviction of a single individual for the substantive offence.

Therefore, the appeal of A for setting aside the conviction on the ground that while the charge was framed under Section 420 read with Section 34 of IPC, he alone cannot be convicted under Section 420 of IPC is not sustainable at law. He can still be convicted for the substantive offence of cheating as charged.

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