DOCTRINE OF CONSTRUCTIVE LIABILITY REFERRING TO MOHAN SINGH VS STATE OF PUNJAB [AIR 1963 S.C. 114] & PRINCIPLES LAID DOWN IN M.H.GEORGE Vs STATE OF MAHARASTRA [AIR 1965 S.C. 722]

 

DOCTRINE OF CONSTRUCTIVE LIABILITY REFERRING TO MOHAN SINGH VS STATE OF PUNJAB [AIR 1963 S.C. 114] & PRINCIPLES LAID DOWN IN M.H.GEORGE Vs STATE OF MAHARASTRA [AIR 1965 S.C. 722]

The incidence of murder took place at Malsian (V) of Ferozepore district on 9/5/1959. Six accused, namely Monan singh, Jagir singh, Dilip singh piare singh, Ujagar singh and Bahadur singh formed an unlawful assembly wearing deadly weapons and having common object, committed rioting against the opposite group. Gurdip singh was murdered Hamam singh was injured.

The trial court held that the charges framed against the  plara singh were not proved and thus acquitted them. Dilip singh was convicted under sec. 302 read with sec. 147 and the applicants (mohan singh, Jagir singh and three others) were convicted under sections 302, 147 and 149. All of them were sentenced to imprisonment for life under sec 302 and for minor offence under sec 147, each of them six months rigorous imprisonment. On appeal, the high court confirmed it.

Judgment

The supreme court upheld the conviction under section 302, but altered the convictions imposed under sec. 147 to sec. 34 and set aside the convivtions under sec. 147.

Principles

The supreme court observed: Like sec. 147, sec 34 also deals with cases of constructive criminal liability. It provides that where 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. The essential constituent of the vicarious criminal liability prescribed by sec.34 is the existence of the common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of sec.3. In some ways the two sections are similar and in some cases they may overlap. But nevertheless, the common intention which is the basis of sec. 34 is different from the common object which is the basis of the composition of the unlawful assembly. Common intention denotes action in correct and necessarily postulates the existence of a pre – arranged plan and that must mean prior meeting of minds. Cases to which sec.34 can be  applied disclose an element of participation in action on the part of all the accused persons. The common intention required by sec.34 is different from the same intention or similar intention.

M.H.GEORGE Vs STATE OF MAHARASTRA [AIR 1965 S.C. 722]

The reserve bank of india placed some restrictions on the entry of gold into india, thus superseding its earlier notification. The accused reached Bombay [on the way to Manila], where gold bars were recovered from him. The accused pleaded that he had no mens rea and thus had no knowledge of the notification. After considering the object and subject matter of the statute (The foreign exchange regulation act, 1947), the court held that there was no scope for the invocation of the doctrine of mens rea in this case. The court further observed that the act was designed to safeguarding and conserving foreign exchange which is essential to the economic life of a developing country. The provisions have therefore to be stringent and so framed as to prevent unauthorized and unregulated transaction which might upset the scheme underlying the controls; and in a large context, the penal provisions are aimed at eliminating smuggling which is a con - comitant of controls over the free movement of goods or currencies.

So, the court held that the very object and the purpose of the act would be frustrated if the accused should be proved to have knowledge that he was contravening the law, before he could be held to have contravened.