LLM Group 5 Criminal Law and Criminal Administration Criminal Jurisprudence 2023 Question Paper with Solutions

Sections 76 and 79, now 14 and 17: act of a person bound, or by mistake of fact believing himself bound, by law; and act of a person justified, or by mistake of fact believing himself justified, by law. Sections 77 and 78, now 15 and 16: judicial acts, and acts done pursuant to a judgment or order. Section 80, now 18: accident in doing a lawful act. Section 81, now 19: necessity. Sections 82 and 83, now 20 and 21: infancy, absolute below seven and conditional between seven and twelve. Section 84, now 22: unsoundness of mind. Sections 85 and 86, now 23 and 24: intoxication, involuntary and voluntary. Sections 87 to 92, now 25 to 30: the consent group, including consent to risk, acts in good faith for a person's benefit, acts for a child or person of unsound mind, consent vitiated by fear or misconception, and acts done without consent in an emergency. Section 93, now 31: communication made in good faith. Section 94, now 32: act to which a person is compelled by threats. Section 95, now 33: act causing slight harm. Sections 96 to 106, now 34 to 44: the right of private defence.

They divide into justifiable acts, which the law approves, and excusable acts, which the law does not approve but does not punish because the actor lacked capacity or fault.

What it covers. Section 97, now section 35, gives the right against any offence affecting the human body, and against theft, robbery, mischief and criminal trespass in relation to property. The property list is closed: there is no right of private defence against cheating or criminal breach of trust. Section 98, now section 36, gives the right even against a person who is himself immune by youth, immaturity, unsoundness of mind or misconception.

When it extends to death. Section 100, now section 38, lists seven occasions for the body: apprehension of death; apprehension of grievous hurt; assault with intent to commit rape; assault with intent to gratify unnatural lust; assault with intent to kidnap or abduct; assault with intent to confine wrongfully where the person cannot reach the public authorities; and the throwing or administering of acid, added in 2013. Section 103, now section 41, lists four for property: robbery; house-breaking after sunset and before sunrise; mischief by fire or explosive on a dwelling or a place for the custody of property; and theft, mischief or house trespass causing reasonable apprehension of death or grievous hurt. Otherwise sections 101 and 104, now 39 and 42, permit harm short of death only.

Deo Narain v. State of Uttar Pradesh, (1973) 1 SCC 347: in a land dispute the deceased's party advanced with lathis and struck the appellant on the head; he used a spear and caused a fatal chest injury. The Supreme Court acquitted, holding that a person facing reasonable apprehension of grievous hurt need not wait until he is injured, and that force cannot be weighed in golden scales in the stress of an attack.

James Martin v. State of Kerala, (2004) 2 SCC 203: during a bandh a mob came to the accused's flour mill to force it to close and assaulted those inside; the accused and his father fired, killing two. The Supreme Court accepted that the right had arisen but held it exceeded, saying that the right is defensive and circumscribed by the statute and never a pretext for a vindictive, aggressive or retributive purpose.

Excess is not fatal. Exception 2 to section 300, now Exception 2 to section 101, reduces murder to culpable homicide where the accused in good faith and without premeditation exceeded the power given by law without intending more harm than necessary.

Its source. The section enacts the answers the judges gave the House of Lords in M'Naghten's Case, (1843) 10 Cl & F 200, after Daniel M'Naghten, under a delusion of persecution, shot Edward Drummond, private secretary to Sir Robert Peel, in mistake for Peel, and was acquitted to public outrage.

Where section 84 is wider than the English rule. R v. Windle, [1952] 2 QB 826, read "wrong" in the M'Naghten formula as legally wrong, so a man who knew his act was unlawful but believed it morally right was convicted. Section 84 says "either wrong or contrary to law", in the disjunctive, so an accused whose disease destroyed his grasp of moral wrongness is protected even if he knew the act was unlawful.

The cases. Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495: the appellant, convicted of murder, pleaded unsoundness of mind supported by evidence of mental illness. The Supreme Court dismissed the appeal, holding that section 84 is for legal insanity and not medical insanity, that every mentally diseased person is not exempt, and that the incapacity must be proved at the moment of the act.

The third: accident, section 80, now section 18

The provision. Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

Five conditions, and separating them is where the marks are. The occurrence must be an accident or misfortune, meaning unintended and unforeseen. There must be no criminal intention or knowledge. The act being done must be lawful. It must be done in a lawful manner and by lawful means. And it must be done with proper care and caution.

The last condition is decisive, because it separates accident from negligence. A man who kills while doing something lawful but carelessly is not within section 80; he is within section 304A, now section 106, which punishes causing death by a rash or negligent act. The Code's own illustration is the exposition: A is at work with a hatchet, the head flies off and kills a bystander, and if there was no want of proper caution the death is accidental.

Conclusion. The General Exceptions are Chapter IV of the Penal Code, sections 76 to 106, now Chapter III of the Sanhita, sections 14 to 44, and they operate by subtraction: an act within them is not an offence. Of the three taken in detail, the right of private defence in sections 96 to 106 is an enumerated right, preventive and not punitive, permitting killing only on the seven occasions of section 100 and the four of section 103 and limited throughout by the four restrictions in section 99, as Amjad Khan, Deo Narain and James Martin show. Unsoundness of mind in section 84 requires legal and not medical incapacity at the moment of the act, as Surendra Mishra holds, and after Dahyabhai Thakker a failed plea may still raise a reasonable doubt about intention. Accident in section 80 excuses the unintended consequence of a lawful act lawfully and carefully done, as Tunda v. Rex shows, and fails the moment proper care is wanting.

The answer is constructive liability: a person is made answerable for an act his own hands did not do, because of his relationship to those who did it. The Code implements it through five devices, and they can be arranged by how far the accused stands from the act itself.

Furthest from the act: criminal conspiracy

Sections 120A and 120B of the Penal Code, now the single section 61 of the Bharatiya Nyaya Sanhita, 2023.

The agreement itself is the offence. Two or more persons agree to do an illegal act, or a legal act by illegal means, and where the object is an offence nothing need be done to carry it out. The proviso requires an overt act only where the agreement is to do something short of an offence. The accused may therefore be convicted having done nothing at all beyond agreeing, which is why this device stands furthest from the act.

The abettor stands closer than the conspirator because he must have done something: instigated, or engaged in a conspiracy coupled with an act in pursuance, or intentionally aided. But he need not have participated in the offence and need not be present. Section 108, now section 46, makes him liable whether or not the offence is committed, and whether or not the person he used is himself capable in law of committing it, so a man who instigates a child under seven to kill is an abettor.

S. S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190, states what instigation requires. A student committed suicide leaving a note blaming a hostel warden who had been strict with him, and the warden was prosecuted for abetment. The Supreme Court quashed the proceedings, holding that abetment involves a mental process of instigating or intentionally aiding, that there must be a direct or indirect act of incitement, and that without a positive act by the accused a conviction cannot be sustained.

Next: common object

Section 149 of the Code, now section 190, with unlawful assembly defined in section 141, now section 189(1).

Baladin v. State of Uttar Pradesh, AIR 1956 SC 181, held that mere presence in an assembly does not make a person a member unless he did or omitted something making him one, or shared the common object. Masalti v. State of Uttar Pradesh, AIR 1965 SC 202, is the qualification and the more important case: a Bench of four judges held that Baladin must be read in the context of its own special facts and is not an unqualified proposition of law, so that mere presence is not enough but an overt act by each accused is not required either. Masalti also supplies the rule of prudence that where many accused are charged the court should look for the consistent testimony of a reasonable number of witnesses against each of them.

Nearest to the act: common intention

Section 34 of the Code, now section 3(5) of the Sanhita.

Here the accused must have done two things: shared a prior meeting of minds, and participated in the criminal act. He stands nearest to the act of all, and that is why the device is the least open to criticism.

The renumbering is a trap. Common intention is no longer a section of its own but a sub-section of the general explanations clause; section 34 of the Sanhita is "Things done in private defence". Sections 35 to 38 of the Code are now sections 3(6) to 3(9).

Mahbub Shah v. Emperor, AIR 1945 PC 118, supplies the limit. On 25 August 1943 Allah Dad and others took a boat down the Indus to cut reeds from disputed land; on the way back Ghulam Quasim Shah tried to stop the boat and Allah Dad struck him with a lari; Wali Shah and Mahbub Shah came up armed and Wali Shah shot Allah Dad dead while Mahbub Shah wounded another man. The Privy Council set aside Mahbub Shah's conviction: there was no evidence of a pre-arranged plan to kill, and the two men had at most the same intention formed on the spur of the moment. Care must be taken, the Board said, not to confuse same or similar intention with common intention; the partition dividing them is often very thin, and the distinction is real and substantial.

Pandurang v. State of Hyderabad, AIR 1955 SC 216, states how much prior concert is enough: a prior meeting of minds is essential, but it may be formed on the spot and even during the incident, provided it precedes the act.

The threshold question, before any of this

Nanak Chand v. State of Punjab, AIR 1955 SC 274, holds that section 149 creates a specific offence and section 34 does not: section 34 prescribes no punishment and is a rule of attribution read with a substantive section. A charge under section 302 read with section 149 is therefore a distinct charge from one under section 302 alone or read with section 34, and a person charged with the one cannot be convicted of the other without a specific charge being framed. Conversion is permitted where no prejudice results, but prejudice must be decided on the record and not assumed.

The spectrum set out

Conclusion. The principle of group liability runs along a spectrum. Conspiracy under section 61 convicts on the agreement alone and stands furthest from the act, which is why Kehar Singh insists that agreement be proved and not inferred from association. Abetment under sections 45 to 60 requires a positive act of instigation or aid, as S. S. Chheena holds, but no participation. Common object under section 190 requires five persons and membership, and reaches offences merely known to be likely, as Mizaji shows, with Baladin as qualified by Masalti fixing where membership begins. Common intention under section 3(5) stands nearest the act, requiring a prior meeting of minds and participation, and Barendra Kumar Ghose holds that the man at the door participates while Mahbub Shah holds that a shared moment is not a shared plan. Before any of them, Nanak Chand requires the charge to say which device the accused is called on to meet.

Intention is never punishable alone. An unexpressed intention leaves no trace, so it could be proved only by confession or conjecture, and the criminal law punishes conduct rather than character. But once the intention is shared the position changes: criminal conspiracy under section 120A of the Penal Code, now section 61 of the Bharatiya Nyaya Sanhita, 2023, makes an agreement to commit an offence punishable in itself, without anything being done in pursuance. Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609, holds that such an agreement may be inferred from circumstances but that the circumstances must be consistent only with agreement and not merely with association.

Preparation is the arrangement of the means. As a general rule it is not punishable, on the strength of locus poenitentiae, the opportunity to repent.

Attempt is where liability ordinarily begins. Section 511 of the Code, now section 62, is the residuary provision; specific attempts are separately punished, attempt to murder having been section 307 and now being section 109, and attempt to commit culpable homicide section 308 and now section 110.

Commission completes the offence and absorbs the earlier stages.

The test India adopted

Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698, chose among them. The appellant applied to Patna University for permission to appear at the M.A. examination as a private candidate, falsely stating that he was a graduate and enclosing forged certificates of teaching experience. The University, deceived, issued an admission card, which was withheld when the fraud came to light. He argued that he had done no more than prepare, since the examination was still in the future.

The Supreme Court convicted him of an attempt to cheat and stated the test: a person commits the offence of attempt when, having formed the intention and completed his preparation, he does an act towards the commission of the offence, and the act need not be the last act within his power. The strict Eagleton test was thereby rejected for India.

Malkiat Singh v. State of Punjab, AIR 1970 SC 713, is the case on the other side, and the contrast is what makes both memorable. A truck carrying paddy was stopped thirty-two miles from the Delhi border in breach of an order restricting export. The Supreme Court held this preparation only: the driver could still have been dissuaded or could have turned back, and nothing proximate to the export itself had been done.

Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602, supplies the definition now generally used. An attempt is an act or series of acts which would lead inevitably to the commission of the offence unless something the doer neither foresaw nor intended intervened; it is an act done in part-execution of a criminal design, amounting to more than mere preparation but falling short of actual consummation, and possessing, except for the failure to consummate, all the elements of the substantive crime.

State of Madhya Pradesh v. Narayan Singh, (1989) 3 SCC 596, shows how fine the judgment can be. Lorries carrying fertiliser without the permit required by the Fertilisers (Movement Control) Order, 1973 were intercepted before reaching the Maharashtra border. The trial court held this preparation to export; the Supreme Court reversed, holding that the conduct had passed into an attempt.

Where preparation is itself punished

The Code departs from the general rule wherever the preparation is unequivocal and the harm would be catastrophic: collecting men, arms or ammunition or otherwise preparing to wage war against the Government, section 122 and now section 149; making preparation to commit dacoity, section 399 and now section 310(4); assembling for the purpose of committing dacoity, section 402 and now section 310(5); and the possession offences relating to counterfeit coin, to instruments and materials for counterfeiting, and to forged documents.

What unites them is that each of the three reasons for not punishing preparation fails: the conduct admits of no innocent explanation, the harm would be irreversible, and detection at a later stage would be impossible or too late.

Why an attempt is punished, and how much

The stages raise a question the tests do not answer: if no harm has been done, why punish at all, and why less than for the completed offence?

Abandonment, and why it comes too late

A question that follows directly from locus poenitentiae is whether an accused who has crossed into attempt may escape by voluntarily desisting.

The Indian answer is that he may not. Once the offence of attempt is complete it is complete, and a change of heart afterwards is a matter for sentence and not for liability. The doctrine of locus poenitentiae operates before the line, marking the accused as still at preparation; it has no application after it. That is the practical significance of Abhayanand Mishra: by dispatching the application the appellant had passed the point at which repentance would have availed him, even though the examination was months away and he could have withdrawn at any time.

The contrast with Malkiat Singh is exact. There the driver could still have turned back, and that possibility was itself the reason the Court held him at preparation. The two cases together show that abandonment matters only as a fact bearing on which side of the line the accused stood, and never as a defence once he has crossed it.

For full marks, cover: the paper asks for two and all three are written out below so the choice is yours. At 25 marks for two, each note is worth about twelve or thirteen: definition, statutory basis, two worked cases and a criticism. Do not write three in the hall.

(a) Inchoate crimes

The idea. An inchoate crime is one that is begun but not completed. The word comes from the Latin inchoare, to begin. The law punishes the accused not because harm has been done but because he has brought the community close enough to harm that intervention is justified. It is the criminal law reaching backwards from harm to risk.

The three inchoate offences, and they are best given in the order in which they occur in time.

The characteristic problem is the boundary. For attempt it is the line between preparation and execution. Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698, settled it: the appellant applied to Patna University to sit the M.A. examination on a false claim to be a graduate and on forged certificates, and an admission card was issued and then withheld. The Supreme Court held this an attempt to cheat, and held that once preparation is complete any act towards the commission of the offence suffices, whether or not it is the last act within the accused's power. Malkiat Singh v. State of Punjab, AIR 1970 SC 713, marks the other side: a truck of paddy stopped thirty-two miles from the Delhi border was still at preparation, because the driver could have turned back.

For conspiracy the boundary is between agreement and association. Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609, holds that a conspiracy is hatched in secrecy and may be proved by circumstantial evidence, but that the circumstances must be consistent only with the inference of an agreement; the Court acquitted Kehar Singh on that footing, holding that meetings and association did not establish that he had agreed to the killing.

(b) Strict and vicarious liability

They are two ideas, not one. Strict liability dispenses with mens rea as to one or more elements of an offence; the person punished is still the person who did the act. Vicarious liability makes one person answerable for the act of another. A statute may create either without the other, and running the two together is the commonest error on this topic.

The presumption against strict liability. Sherras v. De Rutzen, [1895] 1 QB 918, holds that mens rea is an essential ingredient of every offence unless displaced by the words of the statute or by the subject matter with which it deals, and names the classes where displacement is usual: acts not criminal in any real sense but prohibited in the public interest, public nuisances, and proceedings criminal in form but really a summary means of enforcing a civil right. Sweet v. Parsley, [1970] AC 132, restored the presumption after a period of drift; a schoolteacher who sub-let a farmhouse had been convicted of being concerned in the management of premises used for smoking cannabis without knowing of it, and Lord Reid held that where a section is silent it is necessary to go outside the Act and enquire whether the presumption is displaced.

The Indian pair, on either side of the line.

The two together establish that the test is the purpose of the statute, and not the label "economic offence" or the size of the penalty.

Vicarious liability barely exists in criminal law. Srinivas Mall Bairoliya v. Emperor, AIR 1947 PC 135: a licensed salt dealer was convicted of selling salt above the controlled price, the sales having been made by his servant without his knowledge, and the Privy Council quashed the conviction, saying it would be a serious departure from principle to hold a man criminally responsible for the act of his servant. Ravula Hariprasada Rao v. State, AIR 1951 SC 204, followed it for a petrol pump proprietor whose employees had supplied petrol without coupons.

Vicarious criminal liability therefore arises only where a statute creates it expressly, and the standard form, making a director or manager in charge of the business liable for the company's offence, characteristically carries a proviso allowing escape on proof of want of knowledge or of due diligence.

The three forms. A person abets a thing who instigates any person to do it; who engages with one or more other persons in a conspiracy for the doing of it, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or who intentionally aids, by any act or illegal omission, the doing of it.

Explanation 1 provides that a person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures a thing to be done, is said to instigate it. Explanation 2 provides that whoever does anything in order to facilitate the commission of an act, either before or at the time of it, is said to aid it.

Liability does not depend on the offence following. Section 108, now section 46, is explicit: 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 it. So a man who instigates a child under seven, or a person of unsound mind, to kill is an abettor although the person he used is immune. Sections 49 to 53 of the Sanhita graduate the punishment according to whether the act was committed, whether it was done with a different intention, and whether a different act resulted.

Distinguished from its neighbours. From criminal conspiracy under section 61: conspiracy is complete on agreement where the object is an offence, while abetment by conspiracy needs an act in pursuance. From common intention under section 3(5): the abettor need not participate in the act at all, while section 3(5) requires participation. From the principal offence: the abettor is convicted of abetment, a distinct offence.

Criticism. Abetment of suicide, section 306 of the Code and now section 108 of the Sanhita, is the provision most criticised, because it is routinely invoked on a suicide note alone, and Kishori Lal and S. S. Chheena represent a continuing judicial effort to require proof of a positive act of incitement rather than a mere connection with the death.

For full marks, cover: the question names the organs, so give Article 34 in full and describe what each organ actually does; a candidate who writes a general essay on international criminal law and mentions "judges and a prosecutor" has thrown away a quarter of the paper. Then give the road to Rome, the four crimes with their definitions, complementarity, the three triggers, worked cases, India's position, and the criticism. This is a 25-mark question and the organs are only one part of it. This exact question is printed on 3 of the papers in this folder, and the answer is the same on every one of them: a candidate sitting either paper writes this.

The road to Rome

International criminal law before 1998 was retrospective and ad hoc.

Jurisdiction: the four crimes

Genocide, Article 6, reproduces the definition in the Genocide Convention, 1948: any of five enumerated acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. The acts are killing members of the group; causing serious bodily or mental harm; deliberately inflicting conditions of life calculated to bring about physical destruction in whole or in part; imposing measures intended to prevent births; and forcibly transferring children of the group to another group. The distinguishing element is the special intent, the dolus specialis, to destroy the group.

Crimes against humanity, Article 7, are enumerated acts including murder, extermination, enslavement, deportation, imprisonment in violation of fundamental rules of international law, torture, rape and other sexual violence, persecution, enforced disappearance and apartheid, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. No armed conflict is required, which is what distinguishes them from war crimes.

Complementarity

This is the Court's governing principle and the answer to most objections founded on sovereignty.

Under Article 17 a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it, unless that State is unwilling or unable genuinely to carry out the investigation or prosecution. It is also inadmissible where the case is not of sufficient gravity.

The Court is therefore a court of last resort. It does not sit in appeal over national courts and it does not compete with them; it acts where the national system has failed, whether by collapse or by design. Unwillingness is judged by whether proceedings were undertaken to shield the person, by unjustified delay, or by want of independence and impartiality; inability by a total or substantial collapse of the national judicial system.

The three triggers

Article 13 provides three ways a situation may come before the Prosecutor.

The Presidency. The President and the First and Second Vice-Presidents, elected by an absolute majority of the judges for three years. The Presidency is responsible for the proper administration of the Court, other than the Office of the Prosecutor, and for the other functions conferred on it by the Statute, including relations with States on enforcement of sentences.

The Judicial Divisions, of which there are three. The Pre-Trial Division, of not less than six judges, which authorises investigations, issues warrants of arrest and summonses, and confirms or declines to confirm the charges. The Trial Division, of not less than six judges, which conducts the trial. The Appeals Division, composed of the President and four other judges, which hears appeals against conviction, sentence and certain interlocutory decisions, and applications for revision.

The Registry. Headed by the Registrar, elected by the judges, it is responsible for the non-judicial aspects of the administration and servicing of the Court. Its work includes the Victims and Witnesses Unit, which provides protective measures, counselling and security, and the machinery for victim participation and for legal aid to defendants.

The Assembly of States Parties is not one of the four organs. It is established by Article 112 as the Court's management oversight and legislative body: it elects the judges, the Prosecutor and the Deputy Prosecutors, adopts the budget, and considers questions of non-cooperation. Saying it is a fifth organ is a common error.

The Court at work

Prosecutor v. Thomas Lubanga Dyilo produced the first conviction, in 2012. Lubanga was the leader of an armed group in the Ituri region of the Democratic Republic of the Congo, and was convicted of the war crimes of conscripting and enlisting children under fifteen and using them to participate actively in hostilities. The case established that the recruitment of child soldiers is a completed war crime in its own right, and it produced the Court's first order for reparations under Article 75.

India and the Court

India participated at Rome and voted against the Statute. It has not signed and is not a State Party. Its objections, stated then and unchanged, are five: the power of the Security Council to refer and to defer, which subordinates a judicial body to a political organ and confers a practical immunity on the permanent members; the omission of the use of nuclear weapons from the list of war crimes while conventional weapons are listed; the omission of terrorism from the Court's jurisdiction; the inclusion of non-international armed conflicts, which reaches internal security; and the Prosecutor's proprio motu power, which India argued would invite politically motivated complaints.

India's answer to the charge that this leaves impunity is complementarity: Indian courts have jurisdiction over the same conduct. The counter-argument is that India has enacted no domestic legislation defining genocide, crimes against humanity or war crimes as such, so the conduct is prosecuted, if at all, as ordinary offences under the Penal Code.

Conclusion. The International Criminal Court is the permanent successor to Nuremberg, Tokyo and the ad hoc tribunals, established by the Rome Statute of 17 July 1998 in force from 1 July 2002, with jurisdiction over genocide, crimes against humanity, war crimes and aggression, exercised over individuals and never over States. Its four organs under Article 34 are the Presidency, the Judicial Divisions of Pre-Trial, Trial and Appeals, the independent Office of the Prosecutor, and the Registry, with eighteen judges elected for a single term of nine years by an Assembly of States Parties which is not itself an organ. It acts only where national courts have failed, which is what complementarity in Article 17 means, and it is limited less by its Statute than by its complete dependence on States to execute what it decides, which Al Bashir demonstrates and which is why India's objection to the Security Council's role remains the sharpest criticism of its design.

The right rests on necessity. The State undertakes to protect person and property but cannot be present at the moment of every attack, and a law obliging the citizen to submit and sue afterwards would ask him to bear an injury the State failed to prevent.

Against whom the right runs

Against an aggressor only. A person who begins an attack cannot claim the right against the resistance he provokes, and a free fight, in which both sides came prepared and willing, is outside the sections altogether, because neither party was defending.

But not only against a punishable aggressor. Section 98, now section 36, gives the right against the act of a person who is himself immune by reason of youth, want of maturity of understanding, unsoundness of mind, intoxication or misconception. A man attacked by a child of six or by a person of unsound mind has the same right, because the right is directed at the harm and not at the guilt of its author.

How far the right goes

Of the body: section 100, now section 38. Killing is permitted only where the assault falls within one of seven descriptions: an assault reasonably causing apprehension of death; one reasonably causing apprehension of grievous hurt; an assault with intent to commit rape; an assault with intent to gratify unnatural lust; an assault with intent to kidnap or abduct; an assault with intent to confine wrongfully in circumstances reasonably causing apprehension that the person cannot have recourse to the public authorities for release; and the throwing or administering of acid, or an attempt to do so, reasonably causing apprehension of grievous hurt, inserted by the Criminal Law (Amendment) Act, 2013.

Of property: section 103, now section 41. Killing is permitted only where the offence is robbery; house-breaking after sunset and before sunrise; mischief by fire or any explosive substance on a building, tent or vessel used as a human dwelling or for the custody of property; or theft, mischief or house trespass in circumstances reasonably causing apprehension that death or grievous hurt will be the consequence if the right is not exercised.

Jai Dev v. State of Punjab, AIR 1963 SC 612, marks the closing of the window: once the danger has passed and the assailants are disabled or in flight, the right is at an end and what follows is retaliation. This is the proposition on which most pleas actually fail at trial, because the medical evidence shows injuries inflicted after the assailant was down.

What limits the right: section 99, now section 37

Four separate restrictions, and most answers give two.

There is no right against an act of a public servant acting in good faith under colour of his office, where the act does not reasonably cause apprehension of death or grievous hurt, even though the act may not be strictly justifiable by law. There is none against an act done by the direction of such a public servant, on the same terms. There is none where there is time to have recourse to the protection of the public authorities. And the right in no case extends to inflicting more harm than is necessary for the purpose of defence.

Deo Narain v. State of Uttar Pradesh, (1973) 1 SCC 347, on proportion. In a land dispute the deceased's party advanced with lathis and one blow landed on the appellant's head; he used a spear and inflicted a fatal chest injury. The High Court held he should have waited to see how serious the blow was. The Supreme Court set the conviction aside, holding that a person facing a reasonable apprehension of grievous hurt is not required to wait until he is actually injured, and that in the stress of an attack the force used cannot be weighed in golden scales.

James Martin v. State of Kerala, (2004) 2 SCC 203, on excess. During a bandh a mob came to the accused's flour mill to force it to close and assaulted those inside; the accused and his father fired, killing two men. The Supreme Court accepted that an occasion for the right had arisen but held that it had been exceeded, and stated that the right is a defensive right circumscribed by the statute, available only when the circumstances clearly justify it, and never a pretext for a vindictive, aggressive or retributive purpose. The case separates two enquiries candidates run together: whether the right arose, and whether what was done stayed within it.

The burden. Section 105 of the Evidence Act, 1872, now section 108 of the Bharatiya Sakshya Adhiniyam, 2023, places it on the accused. Salim Zia v. State of Uttar Pradesh, (1979) 2 SCC 648, holds that the burden is not as onerous as the prosecution's, is discharged on a preponderance of probabilities, and may be satisfied from the material in the prosecution's own case without the accused leading any evidence or entering the witness box. That is why a defence counsel cross-examines on the injuries suffered by the accused rather than putting him in the box.

Criticism

The property provisions are criticised for valuing property against life, since section 103 permits killing to prevent robbery, night house-breaking and arson of a dwelling. The answer is that each of those offences carries a real risk to the persons inside, which is why the fourth clause requires an apprehension of death or grievous hurt before ordinary theft or trespass will justify killing.

Conclusion. The right of private defence protects both person and property but on different terms. Against the person it answers any offence affecting the human body and permits killing only within the seven descriptions of section 100, now section 38. Against property it answers only theft, robbery, mischief and criminal trespass, and permits killing only within the four descriptions of section 103, now section 41, with section 105 defining its continuance offence by offence. It runs against an aggressor only, begins with a reasonable apprehension and ends when that apprehension ends, as Jai Dev holds, and is limited throughout by the four restrictions in section 99, of which the operative one is that no more harm may be inflicted than is necessary. After Amjad Khan and Deo Narain that necessity is judged from the position of a man under attack and not with golden scales, and after James Martin the right stops at the point where defence becomes retribution.

That renumbering carries a trap worth a sentence in the exam. Common intention is no longer a section of its own but a sub-section of the general explanations clause; there is a section 34 in the Sanhita and it is "Things done in private defence". Its companions, sections 35 to 38 of the Code, are now sections 3(6) to 3(9).

Common object. Section 149 of the Code, now section 190 of the Sanhita, provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence is a member of the same assembly is guilty of that offence.

It depends on the definition of unlawful assembly in section 141, now section 189(1).

First difference: the number of persons

Section 34 requires two or more persons and nothing further.

Section 34 requires a pre-arranged plan. Mahbub Shah v. Emperor, AIR 1945 PC 118, is the case that fixed it. On 25 August 1943 Allah Dad and others took a boat down the Indus to cut reeds from land a neighbouring family claimed. Warned off, they cut the reeds anyway. On the way back Ghulam Quasim Shah tried to stop the boat and demanded the reeds, and Allah Dad struck him with a lari. Quasim Shah called for help; Wali Shah and Mahbub Shah came up armed, and Wali Shah shot Allah Dad dead while Mahbub Shah wounded Hamidullah.

The Privy Council set aside Mahbub Shah's conviction for murder. There was no evidence of any pre-arranged plan to kill Allah Dad; the two men had at most the same intention, formed on the spur of the moment, to rescue their kinsman. The Board's warning is the sentence to reproduce: care must be taken not to confuse same or similar intention with common intention; the partition which divides their bounds is often very thin; nevertheless the distinction is real and substantial, and if overlooked will result in a miscarriage of justice.

Pandurang v. State of Hyderabad, AIR 1955 SC 216, states how much prior concert is enough: common intention presupposes prior concert, a prior meeting of minds, though the concert may be formed on the spot and even during the incident, provided it precedes the act.

The limb is controlled rather than unlimited: what must have been known to be likely is an offence committed in prosecution of the common object, so an act done by one member on a private impulse, unconnected with the object of the assembly, falls outside it.

Fourth difference: participation against membership

Section 34 requires participation in the criminal act, though not that each accused do the same thing or anything visible.

Barendra Kumar Ghose v. King Emperor, AIR 1925 PC 1, the Postmaster case, is the leading authority. On 3 August 1923 several men went to the sub-post office at Shankaritola in Bengal. The sub-postmaster was counting money when he was shot and killed. Barendra Kumar Ghose was caught fleeing; his defence was that he had stood outside the door, had fired no shot and had done nothing. The Privy Council upheld his conviction of murder read with section 34, holding that the section deals with the doing of separate acts, similar or diverse, by several persons, and that if all are done in furtherance of a common intention each is liable for the result of them all as if he had done them himself. Standing at the door, cutting off escape and giving warning, was participation.

Masalti also supplies the rule of prudence on evidence: where a large number of accused are charged, the court should look for the consistent testimony of a reasonable number of witnesses against each accused before convicting him.

Fifth difference: what the section does, and what must be charged

Nanak Chand v. State of Punjab, AIR 1955 SC 274, states the structural difference. Section 149 creates a specific offence; section 34 does not. Section 34 lays down no punishment and is a rule of attribution, always read with a substantive section. Section 149 makes membership itself the basis of guilt for the offence committed.

The consequence in that case was severe. The Supreme Court held that a charge under section 302 read with section 149 is a distinct and separate charge from one under section 302 simpliciter or under section 302 read with section 34, and that a person charged with the constructive offence cannot be convicted of the substantive offence without a specific charge being framed. A conviction reached by substituting one for the other after trial was set aside.

Where they overlap, and which is easier for the prosecution

The two are not mutually exclusive. Five or more men acting on a pre-arranged plan attract both, and prosecutions commonly charge in the alternative.

Section 149 is the wider net. Every case within section 34 will also be within section 149 if the number reaches five and the object is an enumerated one; the converse is not true, because section 149 catches the member who never agreed to anything.

It follows that section 149 is easier for the prosecution and harder to defend, which is precisely why Nanak Chand insists that the charge must say which of the two the accused is called upon to meet.

Criticism

The criticism is the same for both and differs only in force. Each provision convicts a person of an act he did not do.

Conclusion. Common intention and common object both fasten on one man the act of another, but on different grounds and at different prices. Section 3(5) of the Sanhita needs two persons, a prior meeting of minds and participation, and creates no offence of its own: the plan is what makes each answerable for all, which is why Barendra Kumar Ghose convicted the man at the door and Mahbub Shah acquitted the man who merely arrived at the same moment. Section 190 needs five persons, an object drawn from a closed list and nothing beyond membership, creates a substantive offence, and reaches offences that were merely known to be likely, as Mizaji shows. Where the facts allow both, section 149 is the easier case for the prosecution and the harder one to defend, and that is exactly why Nanak Chand requires the charge to specify which is relied upon.