The General Explanations

Section 2(14). "'injury' means any harm whatever illegally caused to any person, in body, mind, reputation or property."

Section 2(21). "'movable property' includes property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth."

Section 2(26). "'person' includes any company or association or body of persons, whether incorporated or not."

Section 2(28), public servant, runs to eleven sub-clauses covering commissioned officers, Judges, officers of a Court, assessors and panchayat members, arbitrators, persons empowered to keep another in confinement, officers whose duty is to prevent offences or protect public health, officers dealing with Government property or revenue, officers dealing with village or town assessments, persons who prepare an electoral roll or conduct an election, and persons in the service or pay of the Government, a local authority, a statutory corporation or a Government company.

Section 2(29), reason to believe. "A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise."

Section 2(31), valuable security, is a document by which a legal right is created, extended, transferred, restricted, extinguished or released, or by which a person acknowledges a legal liability or the absence of a legal right.

The provision itself: section 3, the seven rules

Section 3(1). Every definition of an offence, every penal provision and every Illustration is to be understood subject to the General Exceptions in Chapter III, even though those exceptions are not repeated. Its two illustrations make the point with the child under seven and the police officer arresting a murderer without warrant.

Section 3(2). An expression explained in any Part of the Sanhita bears that explained sense throughout.

Section 3(3). Property in the possession of a person's spouse, clerk or servant on that person's account is in that person's possession. This is what makes a servant who takes his employer's goods a thief rather than merely a defaulting bailee.

Section 3(4). Words referring to acts done extend also to illegal omissions.

Section 3(5). "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

Section 3(6). Where an act is criminal only because it was done with a criminal knowledge or intention, each person who joins in it with that knowledge or intention is liable as if he had done it alone with it.

Section 3(7). Where causing an effect is an offence, causing it partly by act and partly by omission is the same offence, illustrated by A who kills Z partly by withholding food and partly by beating him.

Broken down: what section 3(5) requires

A criminal act done by several persons. More than one person must take part in the act. The provision does not create an offence; it distributes liability for one.

A common intention. The persons must share a prior meeting of minds as to the act to be done. Common intention is not the same as similar intention formed independently by each.

In furtherance of that common intention. The act done must advance the shared plan. An act by one participant outside the plan is his alone.

The consequence. Each is liable for the whole act, whoever physically did it. A man who held the victim while another stabbed him is liable for the stabbing.

Distinctions that carry marks

A worked example

Sunil and Manoj agree to rob a jeweller in Kalyan. The plan is that Sunil will hold the shutter down while Manoj takes the trays. Nothing is said about weapons.

Manoj carries a knife without telling Sunil, and stabs the jeweller. The robbery is a criminal act done by both in furtherance of their common intention, so both are liable for it under section 3(5) read with section 309.

The stabbing is a different question. If the shared plan did not extend to violence with a weapon, the stabbing is not in furtherance of the common intention, and Sunil is not liable for it merely because he was there. If, however, the two knew violence might be needed and accepted it, the stabbing is within the plan and section 3(5) fixes Sunil with it.

Change one fact. Suppose Sunil is the jeweller's own shop assistant, and the trays were in his keeping. By section 3(3) the trays were in the jeweller's possession all along, because a servant holds on his master's account, so the taking is theft from the jeweller and not merely a breach of the assistant's duty.

What beginners get wrong

Treating section 2 as optional reading. The definitions decide cases. Whether a computer file is a "document", whether a co-operative society officer is a "public servant", whether a taking was "dishonest" are all questions of definition, and each is answered here.

Thinking good faith means honesty. Section 2(11) makes it a question of due care and attention. A person may act honestly and still fail the test because he did not take the care the situation demanded.

Confusing common intention with common object. They are different provisions with different requirements, and the table above is the answer an examiner is looking for.

Assuming "person" means a human being. Section 2(26) includes companies and unincorporated associations, which is what allows a company to be prosecuted at all.

Limits and criticism

"Unless the context otherwise requires" leaves room for argument in every case, and the courts have used it to depart from a definition where the offence plainly needed a different sense.

Section 2(28) defines public servant at length and still leaves gaps. Whether an office-holder falls inside it has generated litigation for a century and a half, and the Prevention of Corruption Act, 1988 had to enact its own wider definition for its own purposes.

The gender clause is an advance but a partial one. Section 2(10) makes "he" cover any person, yet many offences in Chapter V are drafted so that only a woman can be the victim, and the Sanhita did not revisit that.

Quick revision

Section 2. Interpretation, thirty one clauses, opening "unless the context otherwise requires".

The definitions to know cold. Child, below eighteen, s.2(3); dishonestly, s.2(7); document including electronic and digital record, s.2(8); fraudulently, s.2(9); gender including transgender, s.2(10); good faith as due care and attention, s.2(11); injury, s.2(14); movable property, s.2(21); person including a company, s.2(26); public servant, s.2(28); reason to believe, s.2(29); valuable security, s.2(31).

Section 3. Seven general explanations: offences read subject to the general exceptions; explained expressions carry through; possession through spouse, clerk or servant; acts include illegal omissions; common intention; shared knowledge or intention; and effect caused partly by act and partly by omission.

Section 3(5). Common intention. Formerly section 34 of the Penal Code, now a sub-section of the general explanations.

Test yourself

1. Define "dishonestly" and "fraudulently", and say how they differ. Dishonestly, section 2(7), is doing anything with the intention of causing wrongful gain to one person or wrongful loss to another; fraudulently, section 2(9), is doing anything with the intention to defraud but not otherwise. The first is tied to gain or loss in property; the second is not.

2. State section 3(5) and its three ingredients. When a criminal act is done by several persons in furtherance of the common intention of all, each is liable as if he had done it alone. The ingredients are a criminal act by several persons, a common intention shared before the act, and an act done in furtherance of that intention.

3. Is a company a "person" under the Sanhita? Yes. Section 2(26) includes any company or association or body of persons, whether incorporated or not.

4. A shopkeeper's assistant sells goods entrusted to him and keeps the money. Whose possession were the goods in? The shopkeeper's. Section 3(3) provides that property in the possession of a person's clerk or servant on that person's account is in that person's possession.

5. What is the test of good faith, and why is it unusual? Section 2(11): nothing is done or believed in good faith which is done or believed without due care and attention. It is unusual because it is framed negatively and because it makes care, rather than honesty alone, the test.