Is it Permitted to Amend a Charge under Section 149 of the IPC to a Charge under Section 34 IPC?

Is it permitted to amend a charge under Section 149 of the IPC to a charge under Section 34 IPC?

Know the Law

  • Sec 34 of IPC

Sec 34 of IPC provides for acts done by several persons in furtherance of common intention. It states that 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.

  • Sec 149 of IPC

Sec 149 states 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.

The Supreme Court in Rohtas and Another v State of Haryana (Criminal Appeal No.38/2011) has noted that it is permitted to amend a charge under Section 149 of the Indian Penal Code(IPC) to a charge under Section 34 IPC if the facts prove that the crime has been committed in furtherance of a common intention.

Facts of the case

The Apex Court was hearing the case wherein three out of the seven persons accused of the offence under Section 307 IPC (attempt to murder) was acquitted. Thus, the contention was made that the minimum number of persons required to constitute an  ‘unlawful assembly’ and concomitantly sustain any charge under Section 149 IPC is five.  Given that three of the original seven accused have been acquitted by the  High  Court,  the conviction for attempt to murder as part of an unlawful assembly could not survive. Hence, the issue before the court was whether it was lawful to use the aid of Section 34 IPC (common intention) to attribute criminal liability to the members of the group.

Verdict of the Court

  • The bench observed that Sections 211 to 224 of CrPC, which deal with the framing of charges in criminal trials, give significant flexibility to Courts to alter and rectify the charges.

“The only controlling objective while deciding on alteration is whether the new charge would cause prejudice to the accused, say if he were to be taken by surprise or if the belated change would affect his defence strategy. The emphasis of Chapter XVII of the CrPC is thus to give a full and proper opportunity to the defence but at the same time to ensure that justice is not defeated by mere technicalities,” the judgment said.

  • The bench referred pronouncement made by the court in the case Karnail Singh v. State of Punjab (1953), wherein it was held that “..if the facts to be proved and the evidence to be adduced with reference to the charge under section 149would be the same if the charge were under section 34, then the failure to charge the accused under section 34could not result in any prejudice and in such cases the substitution of section 34 for section 149 must be held to be a formal matter”.
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  • The bench also cited another precedentNallabothu Venkaiah v. State of AndhraPradesh(2002), where it was observed that “…charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w Section 34 if the criminal act was done by several persons less than five in number in furtherance of common intention is proved.”

“Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such ‘common intention’ is usually indirectly inferred from the conduct of the individuals and only seldom it is done through direct evidence,” ruled the Court.

  • The bench observed that the appellants did not suffer any adverse effect when the Punjab and Haryana High Court held the three of them individually guilty for the offence of attempted murder, without the aid of Section 149 IPC.
  • In the present case, the Court held that “The incident was not in a spur­ of­ the­ moment. The appellants had previously threatened the complainant with physical harm if he were to attempt to irrigate his fields. Their attack on 25.01.1998 was thus pre­planned and calculated. There is nothing on record to suggest that the complainant caused any provocation. Specific roles have been attributed to each of the appellants by the injured and the solitary eye­witness, establishing their individual active participation in the crime”, the Court observed.
  • The SC held that “the requirements of Section 34 of IPC are well established as the attack was apparently pre­meditated”.

Thus, the conviction of the appellants under Section 307 IPC was upheld.

Case name: Rohtas and Another v State of Haryana

Citation: Criminal Appeal No.38/2011

Coram: Justices N V Ramana, Surya Kant and Aniruddha Bose

 [ Is it permitted to amend a charge under Section 149 of the IPC to a charge under Section 34 IPC? ]

Also Read: No Bar U/S 22 MMDR Act; Magistrate can Direct Registration of FIR U/S 156(3) CrPC for Offences under MMDR Act: SC

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