Vicarious Liability

Judicial Academy Jharkhand

1
• “Lawlessness is the order of the day. Having
got the experience of dealing with cases
involving major crimes, we can also
authoritatively say that even the kith and kin,
close relatives, friends, neighbors and
passerby who happen to witness the
occurrence are threatened and though initially
give statements to the police, invariably
turned hostile, apparently because of the
threat meted out to them by the hardened and
professional criminals and gangsters” – Union
of India Vs. V. Sriharan, 2016 (7) SCC 1

2
• Constructive liability means the liability of a
person for an offence he has not himself
committed.
• The phrase constructive liability means and
connotes the sense that a person is liable in
law for the consequences of an act of another
even though he has not done it himself.
• Vicarious liability is one those liabilities that is
imposed on one person for the wrongful
action of another person.
• In practice both terms are used interchangebly

3
• The commission of crime in most cases
require joint action or assistance and co-
operation of one or more persons. Unless all
those are not made punishable the object of
the code shall not be fully realized.
• The criminal liability under the Indian Penal
Code for criminal acts committed by the
groups have a distinct imprint of the English
Common Law which makes a distinction
between the principal offender and
accessories to the crime.

4
• Principal offenders who takes part in actual
execution of the crime.
• Accessories - Those who counsel, procure or
command the execution.
• Accessories before the fact- Chapter-V from
Section 107 to 120
• Accessories at the fact – Section 34 to 38 Under
chapter – II and section 149 of the IPC
• Accessories after the fact- are scattered in
different provisions namely 130, 136, 157, 212
and 216 under the title Harbouring.
• Section 34 to 38 do not create a substantive
offence, they interpretative clause.

5
 Section 34 IPC
• Ingredients :
• In common intention
• Participation in the act by two or more persons
• Prior concert of meeting of mind
• Mehboob Shah Vs. King Emperor, AIR 1945 PC 148 - The section
does not say “the common intentions of all” nor does it say an
intention common to all. The section uses the expression “in the
furtherance of common intention of all”. This show the requirement
of a pre-concert or a pre-arranged plan
• Virtual presence- Suresh Vs. State of U.P., 2001(3) SCC 673
• It has been held in this case that where one of such persons in
furtherance of common intention, overseeing the actions from a
distance through binoculars gives instructions on mobile section 34
will apply.

6
• “In Crime as well as in life, he also
serves who merely stands and waits”
Lord Sumner in Birendra Kumar Ghosh
Case
• Free Fight – State of Bihar Vs. Surendra Singh
Rautela, 2001 Cr.L.J. 1650 (Jhr.) - In case of free
clash between several persons when injuries have
been received by several persons of each group
section 34 IPC cannot be invoked
• Sudden Fight – Normally section 34 IPC would
not apply, if the fight begins suddenly, every
person would be taken as responsible for his
individual act.
• Same intention may become common intention.

7
• The essence of section 34 is simultaneous
consensus of mind of persons participating in
the criminal actions to achieve a particular
result – Mohan Singh Vs. State of Punjab, AIR
1963 SC 174.

8
• Q: Can an accused be convicted under section
304 part II with aid of section 34?

9
• This question has been answered in Afrahim
Seikh Vs State of WB AIR 1964 (SC) 1263: The
question is whether the second part of S.304 can
be made applicable. The second part no doubt
speaks of knowledge and does not refer to
intention which has been segregated in the first
part. But knowledge is the knowledge of the
likelihood of death. Can it be said that when three
or four persons start beating a man with heavy
lathis, each hitting his blow with the common
intention of severely beating him and each
possessing the knowledge that death was the
likely result of the beating that the requirements
of S. 304, Part II are not satisfied in the case of
each of them?

10
If it could be said that knowledge of this type
was possible in the case of each one of the
appellants, there is no reason why Section 304,
Part II cannot be read with S. 34. The common
intention is with regard to the criminal act i.e.
the act of beating. If the result of the beating is
the death of the victim , and if each of the
assailants possesses the knowledge that death is
the likely consequence of the criminal act, i.e.,
beating, there is no reason why S. 34 or S. 35
should not be read with the second part of S.
304 to make each liable individually.

11
• VICARIOUS LIABILITY OF COMPANY
• HDFC Securities Ltd Vs State of Maharashtra
2017(1) JBCJ: AIR 2017(SC) 61
• The IPC , does not provide for vicarious liability
for any offence alleged to be committed by a
company. If and when a statute contemplates
creation of such a legal fiction, it provides
specifically therefore, NI Act 1881. Indian Penal
Code does not contain any provision for attaching
vicarious liability on the part of the Managing
Director or the Directors of the Company when
the accused is the Company.

12
• Sharad Kumar Sanghi Vs Sangat Rane
(2015)12 SCC 781
• The allegations which find place against
Managing Director in his personal capacity
seem to be absolutely vague. When a
complainant intends to rope in the Managing
Director or any officer of the Company, it is
essential to make requisite allegation to
constitute the vicarious liability.

13
• Maksud Sayed Vs. State of Gujarat, 2008 (5)
SCC 668 - Where a jurisdiction has exercised
on a complaint petition filed in terms of
section 156 (3) or Section 200 of the Cr.P.C.
the Magistrate is required to apply his mind.
IPC does not contain any provision for
attaching vicarious liability on the part of the
Directors of the company when the accused is
the company.

14
• GCL Employee Stock option trust Vs. Nimesh
Ramesh Mehta, 2013 (4) SCC 505 – Compliant
not making any specific allegation against
respondent nos, 2 to 7 – Magistrate not
recording his satisfaction about prima facie
case against respondent nos. 2 to 7 and the
role played by them- Issue of summons is
abuse of the process of court- High Court
rightly quashed process against respondent
no. 2 to 7.

15
• Section 35 – When such an act is criminal by
reason of its being done with a criminal
knowledge or intention – Whenever an act
which is criminal only by reason of its being
done with a criminal knowledge or intention,
is done by several persons, each of such
persons who joins in the act with such
knowledge or intention is liable for the act in
the same manner as if the act were done by
him alone with that knowledge or intention.

16
• Under S/ 34 enacts that each and every
person who performs even the fractional part
of the act in the furtherance of common
intention is deemed to be regarded as the
performer of whole of it. But where the
performer has the requisite intention of the
individual fractional act, but not the common
intention for the whole then in term of
Section 35 he will be liable only for his fraction
act alone.

17
• Section 35 only speaks of a number of persons
doing an act with certain criminal knowledge
or intention and not under a common
intention, so that a pre-concerted plan will
not be necessary to make this section
applicable.
• Bhopal Gas Tragedy, JT 1996 (8) SC 136,
Keshub Mahindra Vs. State of M.P.

18
• Section 36 – Effect caused partly by act and partly by
omission – Wherever the causing of a certain effect, or
an attempt to cause that effect, by an act or an
omission is an offence, it is to be understood that the
causing of that effect partly by an act and partly by an
omission is the same.
• Illustration – A intentionally causes Z’s death partly by
illegally omitting to give the Z food and partly by
beating Z. A has committed murder.
• In Sushil Ansal Vs CBI 2002 CriLJ 1369 relating to the
Upahar fire tragedy case, framing of charge under Ss
304 A, 337 and 338 r/w 36 of the IPC was upheld by
the Delhi High Court considering the cumulative
omissions leading to the offence of negligence leading
to fire tragedy consequent death and injuries.

19
• Section 37- Co-operation by doing one of several acts
constituting an offence -
• The difference with section 34 can be better
appreciated by one illustration of conjoint assault by
several persons, some giving blows, some stick blows,
some knife injury and some gunshot injury. The acts
done by them can not be treated as several within the
meaning of S.37. They are doing one criminal act and
their different acts being done in the furtherance of
common intention to murder the victim and S.34 will
apply squarely. The reason is that although several
persons joined together in committing the crime and
the injuries may have been caused by various acts, all
their acts constitute, from a common sense point of
view, only single act and not several different acts,
20
• Section 38 – Persons concerned in criminal
act may be guilty of different offences –
Where several persons are engaged or
concerned in the commission of a criminal act
they may be guilty of different offences by
means of that act.
• Sections 34, 35 and 38 interrelation :
• Section 34 and 35 creates responsibility for
the total result, Section 38 fastens individual
responsibility only.

21
• The next question arises about the criminal
liability of the persons who did not actually
participate in the crime, but was the member
of the unlawful assembly and an offence is
committed in the prosecution of the common
object?
• Section 149 is an answer to such a
situation and in such an eventuality, while the
principal offender will be charged with the
main offence and Section 148, others will be
charged with the main offence r/w 149 IPC
and Section 148.

22
 Section 149
• The accused must be a member of the unlawful
assembly.
• An offence must be committed by another
member of the assembly.
• The offence must have been committed in the
prosecution of common object of that assembly
or ;
• The members of the assembly must have known
that such offence was likely to be committed in
prosecution of the common object of the
assembly
23
● Prior formation of an unlawful assembly with
a common object is not not necessary as the
common object could develop eo instanti.
● What is an unlawful assembly has been laid
down under section 141 IPC.
● Conviction of less than five persons
sustainability.
● The Apex Court in Kalu Masih Vs. State of
M.P. rejected the contention that when only
four persons are found guilty there cannot be
conviction u/s 149 IPC.

24
• Sikandar Singh Vs. State of Bihar 2010 (7) SCC
477- The ‘common object’ of an assembly is to
be ascertained from the acts and language of
the members composing it, and from a
consideration of all the surrounding
circumstances like the conduct of each
member of the unlawful assembly, before, at
the time and thereafter, and the motive of the
crime are some of the relevant considerations.

25
● Maheshwar Vs. State of Orissa – 1983 Cr.L.J.
1029 – When accused persons are acquitted
under section 147 or 148 IPC they cannot be
convicted u/s 302 / 149 IPC.
● Another defect was found that the charge does
not disclose the common object of the unlawful
assembly.
● Is it necessary to frame charge u/s 147 or 148 in
addition to the charge for an offence with the aid
of section 149?
● Held – that is was not obligatory but it may be
useful to guard against failure of charge for an
offence under section 149. 1966 AIR SC 302.

26
• Can a judgment of conviction be passed
against less than five persons with the aid of
section 149 of IPC?
• Where the charge is framed only against five
persons, can a judgment of conviction be
passed against four persons with the aid of
section 149?

27
• 1963 AIR 174 SC, Mohan Singh Vs. State of
Punjab – If the charge has been framed
against three persons and others then on
evidence a conviction order can be passed
against two persons. But, where the charge
does not disclose the involvement of five or
more persons named or unnamed then
conviction with aid of section 149 for persons
less then five shall be unsustainable.

28
 Abetment Ss 107 to 118

• Section 107-Abetment of a thing.—A person

abets the doing of a thing, who—
• First.—Instigates any person to do that thing; or
• Secondly.—Engages with one or more other
person or persons in any conspiracy for the doing
of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in
order to the doing of that thing; or
• Thirdly.—Intentionally aids, by any act or illegal
omission, the doing of that thing.
29
• The word instigate denotes incitement or
urging to do some drastic or inadvisable action
or to stimulate or incite.
• Law does not require instigation to be in a
particular form or that it should only be in
words. The instigation may be by conduct.
Whether there was instigation or not is a
question to be decided on the facts of each
case.

30
• Second Clause – Conspiracy
• The offence of abetment created under the
second clause of Section 107 requires that there
must be something more than mere conspiracy.
There must be some act or illegal omission in
pursuance of that conspiracy. That would be
evident by Section 107 (secondly), "engages in
any conspiracy....for the doing of that thing, if an
act or omission took place in pursuance of that
conspiracy".
• An offence of criminal conspiracy is, on the other
hand, an independent offence. It is made
punishable under Section 120B for which a
charge under Section 109 is unnecessary and
inappropriate.
31
 Aid by Act

• It has been held that howsoever insignificant

the aid may be, it would be abetment if it
would be given with the requisite intention or
knowledge. The test is not to determine
whether the offence would or would not have
been committed if the aid had not been given.
But whether the act was committed with the
aid of abettor in question.

32
• Gallu Shah Vs. State of Bihar, AIR 1958 SC 813 –
The charge against the appellant accused was
under section 436/ 109 IPC for ordering another
person named Budi Shah to set on fire the hut of
one widow. For want of evidence the charge
against Budi Shah failed.
Question was whether Gallu Shah can be held
guilty of abatement when the charge against the
principal offender had failed?
• It was held that there are exceptions particularly
when there is evidence which establishes that
offence abetted is committed in consequence of
abatement.

33
• Bank of India Vs. Yeturi Maredi Shankar Rao, AIR
1987 SC 821, accused was Accounts Clerk in the bank
who obtained the passbook of the victim for posting
upto date entries and never returned the same. After
about a month Rs. 6000/- was withdrawn from her
account by a withdrawal form. During investigation
forgery of withdrawal was proved. The first appellate
court convicted the accused under section 467 /109
and section 471. The Hon’ble HC acquitted him under
section 467/109 and consequently set aside his
conviction also under section 471. Hon’ble Apex Court
admitted that the forgery of signatures could not be
connected with the accused, but based on
circumstances he was convicted under 467/109 and
section 471 of IPC.

34
• S.108 Abettor
• A person abets an offence, who abets either the
commission of an offence, or the commission of an act
which would be an offence, if committed by a person
capable by law of committing an offence with the same
intention or knowledge as that of the abettor.
• Explanation 1.--The abetment of the illegal omission
of an act may amount to an offence although the
abettor may not himself be bound to do that act.
• Explanation 2.--To constitute the offence of abetment
it is not necessary that the act abetted should be
committed, or that the effect requisite to constitute
the offence should be caused.

35
• Illustration
• (a) A instigates B to murder C. B refuses to do so. A is guilty of
abetting B to commit murder.
• (b) A instigates B to murder D. B in pursuance of the instigation
stabs D. D recovers from the wound. A is guilty of instigating B to
commit murder.
• Explanation 3.--It is not necessary that the person abetted
should be capable by law of committing an offence, or that he
should have the same guilty intention or knowledge as that of the
abettor, or any guilty intention or knowledge.
• Illustrations
• (a) A, with a guilty intention, abets a child or a lunatic to
commit an act which would be an offence, if committed by a person
capable by law of committing an offence, and having the same
intention as A. Here A, whether the act be committed or not, is
guilty of abetting an offence.
•

36
• (b) A, with the intention of murdering Z, instigates B, a child under
seven years of age, to do an act which causes Z's death. B, in
consequence of the abetment, does the act in the absence of A and
thereby causes Z's death. Here, though B was not capable by law of
committing an offence. A is liable to be punished in the same
manner as if B had been capable by law of committing an offence,
and had committed murder, and he is therefore subject to the
punishment of death.
• (c) A instigates B to set fire to a dwelling-house, B, in consequence
of the unsoundness of his mind, being incapable of knowing the
nature of the act, or that he is doing what is wrong or contrary to
law, sets fire to the house in consequence of A's instigation. B has
committed no offence, but A is guilty of abetting the offence of
setting fire to a dwelling-house, and is liable to the punishment,
provided for that offence.
• (d) A, intending to cause a theft to be committed, instigates B to
take property belonging to Z out of Z's possession. A induces B to
believe that the property belongs to A. B takes the property out of
Z's possession, in good faith, believing it to be A's property. B,
acting under this misconception, does not take dishonestly, and
therefore does not commit theft. But A is guilty of abetting theft,
and is liable to the same punishment as if B had committed theft.
37
• Explanation 4.--The abetment of an offence being an offence, the
abetment of such an abetment is also as offence.
• Illustration
• A instigates B to instigate C to murder Z. B accordingly instigates C to
murder Z, and C commits that offence in consequence of B's instigation. B
is liable to be punished for his offence with the punishment for murder;
and, as A instigated B to commit me offence, A is also liable to the same
punishment.
• Explanation 5.--It is not necessary to the commission of the offence of
abetment by conspiracy that the abettor should concert the offence with
the person who commits it. It is sufficient if he engages in the conspiracy
in pursuance of which the offence is committed.
• Illustration
• A concerts with B a plan for poisoning Z. It is agreed that A shall
administer the poison. B then explains the plan to C mentioning that a
third person is to administer the poison, but without mentioning A's
name. C agrees to procure the poison, and procures and delivers it to B for
the purpose of its being used in the manner explained. A administers the
poison; Z dies in consequence. Here, though A and C have not conspired
together, yet C has been engaged in the conspiracy in pursuance of which
Z has been murdered. C has therefore committed the offence defined in
this section and is liable to the punishment for murder.

38
 Collateral Acts
• 1994 SCC(Cri) 1150 Manbir Singh Vs State of UP
• When it was established that the co-accused had
the gun and the belt of cartridge and during
altercation between the deceased and the
principal accused who took the gun, and loaded
it, co-accused had exhorted the principal accused
to shoot the deceased, then the instigation is
clear that clearly amounts to abetment that
resulted in the shooting of deceased by principal
accused hence the co-accused is liable to be
convicted under Section 302 /109 of the IPC.
39
• Section.110 Punishment of abetment if
person abetted does act with different
intention from that of abettor
• Whoever abets the commission of an offence
shall, if the person abetted does the act with a
different intention or knowledge from that of
the abettor, be punished with the punishment
provided for the offence which would have
been committed if the act had been done with
the intention or knowledge of the abettor and
with no other.
40
• Matadin Vs State of Maharashtra AIR 1999 SC
138
• In this case the charge was framed under Ss
302/34 of the IPC against the two accused. On
the exhortation of the appellant Matadin the
other co-accused inflicted the fatal knife cut
injury.
• Held : We, therefore, set aside the conviction
and sentence of Matadin under Section 302
read with Section 34 IPC and instead convict
him under Section 324/110 IPC.
41
• Section 111 – When an act is abetted and a
different act is done, the abettor is liable for
the act done, in the same manner, and to the
same extent, as if he had directly abetted it.
• Provided the act done was probable
consequence of the abetment, and was
committed under the influence of the
instigation, or with the aid or in pursuance of
the conspiracy which constituted the
abetment.

42
• Section 113 – Liability of an abettor for an effect
caused by the acct abetted different from that
intended by the abettor--When an act is abetted
with the intention on the part of the abettor of
causing a particular effect, and an act for which
the abettor is liable in consequence of the
abetment causes a different effect from that
intended by the abettor, the abettor is liable for
the effect caused, in the same manner, and to the
same extent, as if he had abetted the act which
the intention of causing that effect, provided they
knew that the act abetted was likely to cause
that effect.

43
• Section 111 speaks of probable consequence and both
sections 113 and 149 speaks of the collateral offences
being likely to happen.
• Practically while appreciating evidence in cases of
collateral offences the nature of offence also need to
be considered. In group and organized or gang crime
like robbery, arson, rioting there is a higher probability
of a prior concert and awareness of the probable
collateral consequences. However, in common crime
there need to be some tangible evidence of such an
awareness.

44
• Section 114 Abettor present when the offence is
committed--
• Whenever any person, who is absent would be
liable to be punished as an abettor, is present
when the act or offence for which he would be
punishable in consequence of the abetment is
committed, he shall be deemed to have
committed such act or offence.
• This section will not apply in the absence of the
proof of the two ingredients :
• (i) Abetment prior to the commission of the
offence
• (ii) Abettors presence at the time of such
commission.

45
• AIR 1981 SC 1417 State of Karanatka Vs Hema Reddy
• Where accused, A, a mortgagee abetted the execution
in his favour of a forged sale deed in respect of the
mortgaged property by another accused B, B will be
liable to be convicted under Section 467 r/w 114 IPC
• AIR 2005 SC 1271 Mukti Prasad Rai Vs State of Bihar
• Where the two appellants armed with lathis entered
into the house and instigated other to beat the
deceased and his son, it would be safe and appropriate
to convict the two appellants under S.324 r/w 114 of
the IPC. The accused persons were charged under
sections 302/34, 307 and 302/114 of the IPC.

46
• Evidence required to make an accused liable
for collateral acts in cases of vicarious liability.
• Distinct approach for common crimes and
organized crimes like robbery, dacoity, rioting
etc.

47
 CRIMINAL CONSPIRACY
• S.120(A) Definition of criminal conspiracy

• When two or more persons agree to do, or cause to be

done,--
• (1) an illegal act, or
• (2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
• Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof.
• Explanation.--It is immaterial whether the illegal act is
the ultimate object of such agreement, or is merely
incidental to that object.]

48
• Section 10 of the Evidence Act
• Chandra Prakash Vs State of Rajasthan
2014(3) JLJR 224(SC)
• In case of conspiracy there can not be any
direct evidence. Express agreement between
the parties can not be proved. Circumstances
proved before , during and after the
occurrence have to be considered to decide
about the complicity of the accused.

49
• Difference between Criminal Conspiracy and
Abetment -
• (i) Agreement to commit an offence is the
essence of criminal conspiracy. For abetment
the second clause under section 107 requires
that some act or illegal omission must take
place in pursuance of the conspiracy.
• (ii) Conspiracy under section 107 and 108
always connotes a conspiracy to commit an
offence under section 120A the agreement to
commit an illegal act or a legal act by illegal
means is a conspiracy.

50
• Q: When to apply charge under section 34,
149, 120B and that under section 109, 114 IPC

51
 Charge with substantive offence and
conviction for Constructive offence and
vice versa--
•Where a person is charged with substantive offence it
is known to him that he has been charged to have
committed the offence, but when an accused is
charged constructively to have committed an offence
by the said section 149 or Section 34 of the IPC, it
makes him understand that he is the accused because
some body in furtherance of the common intention or
for the prosecution of the common object has
committed the substantive offence.

52
•The question arises whether a person charged
for having committed an offence constructively
with the help of Section 149 or Section 34 IPC
can be convicted for having committed the
substantive offence for which he had not been
charged.
•The main authorities on this point are :
•AIR 1958 SC 672 B.N.Srikanthia Vs Mysore
State
•William Slaney Vs State of MP AIR 1956 SC 116

53
Question : Can a person charged for the principal
offence be convicted for the abetment?

•No. When only the principal offence has been

charged, and no charge of the abetment framed
and accused has no notice of fact constituting
abetment, conviction on a charge of abetment is
improper.--- Prasana Kumar Vs Ananda Chandra
AIR 1970 Ori 10.
•Sohan Lal Vs. State of Punjab, 2003 Cri.L.J.
4569 SC – Accused charged under section 304B
cannot be convicted with section 109 because
abatement is a substantive offence and absence
of charge cause prejudice to the accused. 54
Question: Can a person charged with
abetment, be convicted for the principal
offence?
•Yes, Gujarat High Court in N.C. Shah Vs State of
Gujrat 1972 Cri LJ 200(Guj) relied on AIR 1953
Pat 394 in which it was held that , where it has
been held that an accused can be convicted of
the substantive offence if he is charged only
with abetment of the offence, but not when he
has been prejudiced in his defence of a case
based on substantive charge.

55
Question Where a charge simplicitor u/s 302 is
not framed and the accused is charged u/s 302
by 34 of the IPC, Whether a judgment of
conviction can be passed u/s 302 it section 34 is
not proved?

•Ans : Yes William Slainey AIR 1956 SC 116 the

object of the code is design to further the ends
of justice and not to frustrate them by the
introduction of endless technicalities.

56
Question Whether a conviction can be passed
regarding the principal offence are r/w section
34 where the charge is framed u/s 149
Ans State of Bihar Vs Biswanath Rai 1997 CrLJ
4426 SC a charge u/s 149 is no impediment to
conviction by application of 34 if the evidence
discloses the commission of the offence in
furtherance in common intention

57
Thank You
58