The joint criminal responsibility doctrine appears more as the ‘magical weapon'
in the prosecution of crimes. Yet, the doctrine not only gives escalation to
conceptual confusion and conflicts with some fundamental principles of criminal
law but also attacks the traditional ambit of command responsibility liability.
This becomes understandable if both doctrines are applied simultaneously in
cases against accused with some kind of superior position. After a short
overview on both doctrines, as interpreted in modern case law, the article
stretches some examples of their simultaneous application and tries to advance
distinguishing criteria in light of the case law and a ‘dogmatic' analysis of
both the doctrines.
Specifically, the doctrine in its current form suffers from
three conceptual inefficiencies:
- the erroneous attribution of criminal liability for contributors who do
not intend to further the criminal purpose of the association,
- the hassle of criminal liability for the foreseeable acts of one's
- the misguided claim that all members of a joint enterprise are equally
culpable for the actions of its members.
also illustrates various foundation of joint criminal responsibility and its
component which is essential for discharging liability to all the members of a
crime. Some of the landmark judgement of India and International are discussed.
Different perspective of crime and joint responsibility are triggered during the
article. How to distinguish the liability of each member and to allocate
punishment is a tough decision, beside that theories were introduced to make it
simpler to filter the main perpetrator and other members involved in same crime.
Court's interpretation of section 34 along with section 35 is beautifully
explained. This Article is written on the basis of theories and doctrine used
for joint responsibility to be determined in a crime and to avoid the erroneous
decision. The Indian law commission suggested some reform in section-34 where
the witness itself is being questioned for joint association or liability
because of his presence during crime scene. Joint responsibility in crime is a
very delicate issue where innocent or the conspirator needs to be justified by
Criminal law is not limited to the actions of isolated individuals. Offenders
act in concert by developing joint enterprises and trailing their criminal goals
together. They pool information, deliberate in common, coordinate tasks and
distressingly attain results.
These intra-individual associations are some of
the most complex in criminal law theory. Any time joint action is pursued, the
conceptual structure of criminal law theory must be carefully scrutinized to
ensure that criminal liability matches the complex relationships and
deliberative structures within these collective endeavors. The doctrine of joint
criminal enterprise is certainly no exemption to this requirement.
Joint criminal liability, i.e., accomplice liability or, stated more generally,
the criminal law holding somebody other than the primary perpetrator
responsible, is a vital concept. Many crimes are committed by people acting in
concert, and the law needs some way of addressing them. These cases pose a
fundamental challenge because they do not indeed fit into the conventional means
of defining a crime.
Traditionally, a crime consists of two parts:
- an essential mental state, referred to as mens rea or a culpability
- the specific acts that establish the crime, referred to as actus reus.
Since the actus reus in these cases can differ so wildly, we must depend on more
on the mens rea element of the crime. Intuitively, it is intentions, and
specifically the rapport between the intentions of the individuals involved that
distinguish the taxi driver from a getaway driver. And the key to understanding
joint crimes is engaging them in the context of joint intentions: intentions
that relate to each other in particular, and sometimes in particularly complex,
ways that convey about the criminal actions.
The concept of joint liability comes under Section 34 of IPC which 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.
The section can be explained as when two or
more persons commit any criminal act and with the intention of committing that
criminal act, then each of them will be liable for that act as if the act is
done by them individually.
The ingredients of section 34 of IPC are:
- A criminal act is done by several persons;
- The criminal act must be to further the common intention of all;
- There must be participation of all the persons in furthering the common
The essence of liability under Section 34 IPC is simultaneous conscious mind of
individuals sharing in the criminal action to bring about a specific result.
Minds concerning the sharing of common intention gets contented when an overt
act is established qua to each of the accused. Common intention infers
pre-arranged plan and acting in concert pursuant to the pre-arranged plan.
Common intention is an intention to commit the crime essentially committed and
each accused person can be convicted of that crime, only if he has contributed
in that common intention.
Accomplice Liability [Theory-1]
In State v. Ayers
 the defendant sold a 16-year-old a stolen gun without a
license, itself a crime. A few days advanced the buyer of the gun
accidentally shot and killed someone at a party. Although Ayers' conduct was
outrageous and criminal,
and the shooting could not have occurred but for his
sale of the handgun, he was not considered an accomplice to the shooting. In
order to be considered liable, the court clarified, the shooting must have been
committed by someone-
acting in furtherance of a common object or purpose, as distinguished from
someone acting independently or in opposition to him … where the criminal
liability arises from the act of another, it must appear that the act was done
in furtherance of the common design, or in prosecution of the common purpose for
which the parties are assumed or combined together.
Even though Ayers' intervention was needed for the crime – there could have been
no shooting absent the gun – that was not adequate to make him liable. As the
court elucidated, there must be a presence and a certain coordination of
intentions connecting to the crime.
The classic case on the subject is the judgment of the Privy Council in Mahbub
Shah V. Emperor
, AIR 1945 PC 118, wherein it was held as under:
…Section 34 lays down a principle of joint liability in the doing of a criminal
act. The section does not say the common intentions of all
nor does it say
an intention common to all
. Under the section, the essence of that liability is to
be found in the existence of a common intention animating the accused leading to
the doing of a criminal act in furtherance of such intention.
To invoke the aid
of Section 34 successfully, it must be shown that the criminal act complained
against was done by one of the accused persons in the furtherance of the common
intention of all; if this is shown, then liability for the crime may be imposed
on any one of the persons in the same manner as if the act were done by him
This being the principle, it is clear to their Lordships that common intention
within the meaning of the section implies a pre-arranged plan, and to convict
the accused of an offence applying the section it should be proved that the
criminal act was done in concert pursuant to the pre-arranged plan. As has been
often observed, it is difficult if not impossible to procure direct evidence to
prove the intention of an individual; in most cases it has to be inferred from
his act or conduct or other relevant circumstances of the case.
Foreseeable Consequences Liability [Theory-2]:
The foreseeability standard has become predominantly important in international
law, where joint crimes are a critical, if argumentative, issue. Although there
is no shared intention or mens rea towards the further, incidental crime, they
are still held answerable for it by virtue of their initial involvement with the
primary criminal enterprise. The doctrine has been associated to an
assumption of risk: while the accomplice lacks the relevant mens rea, she
readily runs the risk that one of her partners in crime will obligate some
additional, unrelated but foreseeable, crime.
While foreseeability as the base for joint criminal liability is in practice in
many jurisdictions, it entails a substantial departure from a foundational
commitment, broadly, if not universally, involved, to condition criminal
liability on mens rea, i.e.,
the mental state prerequisite for a crime. In effect, the exodus sanctions using
the accomplice's culpability for one crime – such as a conspiracy or specific
criminal endeavor – to justify alleging her with another crime, even though the
crimes may entail different, logically distinct, mental states.
The foremost argument for a foreseeability standard with admiration to joint
crimes is a practical one, turning on the view of joint crimes as a special,
severe threat to people and society. An alternate public policy justification
has been to protect the foreseeability standard only for grave crimes, keeping a
stricter standard that needs some mental or culpability element for quite minor
Judge Posner articulated a version of this public policy justification,
distinguishing the necessities for joint criminal liability bestowing to the
seriousness of the crime. It should be noted, though, that at the extremes, the
variance between foreseeability and intention inclines to collapse. If somebody
drops a glass on a tile floor, it is very foreseeable that it will break, and
choosing to drop the glass can be perceived as evidence of the intention to
break it.Likewise, taking actions to convey about a highly foreseeable, almost
certain event can serve as evidence of an intention directed towards it.
Intention Based Liability [Theory-3]:
Leaving assistance in the charge of a crime and foreseeability aside, the third
option for defining joint criminal liability was canonically articulated by
Learned Hand in United States v. Peoni In order to be measured an
accomplice, it is needed that one must in some sort associate himself with the
venture, that he participate in it as in something that he wishes to bring
about, that he seek by his action to make it succeed.
Section 34 IPC embodies the code of joint liability in doing the criminal act
grounded on a common intention. Common intention essentially being a state of
mind it is very difficult to procure straight evidence to prove such intention.
Therefore, in maximum cases it has to be inferred from the act like, the conduct
of the accused or other relevant circumstances of the case. The inference can be
assembled from the custom in which the accused arrived at the scene and mounted
the attack, the purpose and concert
with which the attack was completed, and from the nature of injury caused by one
some of them.
The contributory acts of the individuals who are not answerable
for the injury can further be inferred from the consequent conduct after the
attack. In this respect even an illegal omission on the part of such accused can
indicate the sharing of common intention.
In other words, the entirety of
circumstances must be taken into consideration in arriving at the conclusion
whether the accused had the common intention to commit an offence of which they
could be convicted. (Noor Mohammad Mohd. Yusuf Momin v. State of
unlawful in the sense of crime only and the acts done unlawfully in the sense
they are wrongful in civil law in spite of they are criminal or not. It is the
later class of wrongful acts which is relevant in establishing the tort of
conspiracy injured by unlawful means because it creates nexus between the loss
suffered by plaintiff and the conspirator who has not himself committed the
wrong but has encouraged his co-conspirator to do the wrong causing loss to
plaintiff which under civil law permits the plaintiff to recover
compensation.Therefore , it's clear to say that Tort is a specific element
of civil wrong whether it is criminal or not.
The Courts' Interpretation Of Section 34 
It is now obligatory to consider how the courts have interpreted section 34,
with the inclusion, of course, of the all-important phrase in furtherance of
the common intention of all. As was pointed out previously, the courts have
experienced much difficulty in this exercise. There are three core areas which
have caused problems; the meaning of criminal act, the connotation of common
intention, and the related issue of whether the common intention must be to
compel the crime actually committed or whether it could embrace some other, or
- Criminal Act
The issue which has risen is whether these words are a synonym for actus reus or
for something else. The difficulty is that if they stand for actus reus, then
the section necessitates that the actus reus be done by all of the accused. This
situation is fitted out for by section 37 if the actus reus consists of several
acts, and by the substantive law if it comprises of one act, for all the accused
are perpetrators anyhow.
The Privy Council pointed this out and established
dispute on the matter in Barendra Kumar Ghosh v. The King-Emperor where they
held that the words mean: that unity of criminal behavior, which results in
something, for which an individual would be punishable, if it were all done by
himself unaccompanied, that is, in a criminal offence. The couple of situations
for which section 34 is no doubt designed are consequently covered.
If it is
impossible to verify which accused inflicted the fatal injury, then the unity of
behavior — the participation of all in the attack — enables all to be held
liable. If the accused was categorically only an accomplice and not the
perpetrator, yet his participation contributed to the result and he is
accordingly liable for it, for in crimes as in other things 'they also serve who
only stand and wait.'
- Common Intention
The Privy Council in Mahbub Shah v. Emperor cast some light on the
meaning of this phrase, holding that it: implies a pre-arranged plan, and
to convict the accused of an crime applying the section it should be proved
that the criminal act was done in concert pursuant to the pre-arranged plan.
- Common Intention to Do an Offence?
The final difficulty in section 34 lies in influential if the common
intention must have been to do the criminal act done, or something else. If
the intent be to do the criminal act, then a collaborator may argue that he
did not intend or desire the consequence, and therefore is not liable for
it, even if he knew it was likely.
This narrow interpretation of the section was taken in R. v, Vincent Banka & Anr., but is evidently provides an easy let-out for defendants and
has been rejected in Singapore in recent cases. Notably, in Mimi Wong & Anor. v.
Public Prosecutor the Court of Criminal Appeal said:
If the nature of the offence [constituted by the criminal act] depends on a
particular intention the intention of the actual doer of the criminal act
has to be considered. What this intention is will decide the offence
committed by him and then section 34 applies to make the others vicariously
or collectively liable for the same offence.
The intention that is an
ingredient of the offence constituted by the criminal act is the intention
of the actual doer and must be distinguished from the common intention of
the doer and his confederates. It may be identical with the common intention
or it may not.
Where it is not identical with the common intention, it must nevertheless be
consistent with the carrying out of the common intention, otherwise the
criminal act done by the actual doer would not be in furtherance of the
There are three possibilities available to improve the unsatisfactory situation
we have at present. First, there could be a thorough transformation of the whole
subject of participation in crime, producing a complete revision of the relevant
parts of the Code. This is perhaps relatively unrealistic. When the Indian Law
Commission examined the entire Indian Penal Code, they suggested few key
adjustments, seemingly satisfied that the courts had sorted out most of the
hitches of interpretation. They did, in fact, propose a re-wording of section 34
but with no substantive variation, and they recommended no changes with respect
to sections 35 and 38.
The other possibilities are either to repeal section 35, which seems to serve
no real-world purpose at the moment anyway, or to restore section 34 to its
original state by deleting the phrase which has produced so much trouble. That
phrase probably arises from the English law on common purpose
largely dropped from sight nowadays. R.J. Buxton has characterized this doctrine
as artificial and unnecessary, favoring instead reliance on knowledge or belief
as to the details of the precise crime. Experience with section 34 illustrate
that common intention has indeed produced artificial and unnecessary
refinements in the case-law. It would be best, in the author's opinion, to drop
it from the section, for a return to the original draft used in aggregation with
section 35 would meet the demands of both practicality and justice.
An argument in contradiction of deletion would perhaps be that the section would
then overlap further with sections 109 and 114 (abetment) and section 149
(common purpose in unlawful assembly). It would overlap further with the prior,
because it would cover accomplices who aid the perpetrator even though there is
no promise between them to render such assistance. It would overlay further with
the later because, like section 149, liability could be imposed on the base of
knowledge rather than intention.
Though, these provision different circumstances
from those envisaged in section 34. The prime purpose of the abetment provisions
is to enforce liability for acts done prior to the committing of an offence,
which section 34 does not cover. Section 149 entails that the accused be a
member of an unlawful assembly as defined in section 141, hence it clearly
differs from section 34. It is true that it has frequently been working as an
alternative to using section 34, but it is succumbed that this was not, in all
probability, the intention of the draftsman, and it has been done in desperation
over the complexities of section 34. If that section were amended and
interpreted in the way suggested, it would not be necessary to resort to the
device of section 149.
The notion of joint liability is embodied in section 34 of Indian penal Code.
This section just elasticities the definition of joint liability and it does not
give any punishment for the same. This section has to be read with various other
sections of IPC like section 120A which gives definition of criminal conspiracy,
section 120 B which gives punishment for criminal conspiracy and section 149
which deals with unlawful assembly. This section 34 cannot be pragmatic on its
own and has to be applied with some other section so as to make a person jointly
liable for that offence.
In the hypothesis the scholar has assumed that the presence of an individual at
the site of offence is not conclusive evidence that he is a part of the offence.
The premise of the researcher stands true that it is not necessary that all the
persons who are present at the site of the offence are some way or other related
to the crime committed.
With the support of cases, the hypothesis of researcher
stands true. In all the above cases the accused persons were present when the
crime was committed and at the initial instance, they were charged for
committing the offence but later on they were acquitted by the higher court.
is also not compulsory that the persons always share the common intention and
commit crime. It may be possible that they are present at the scene just by
chance and shared no common intention which is a vital component of section 34
of Indian Penal Code.
At last, I want to say that at any site of offence it is not at all essential
that only two persons are present i.e. accused and victim, but a number of other
persons like witnesses are also present at the scene of crime most of the time.
So, making an individual liable just because he was present at the scene of
crime or was near to the victim is not justified.
JCL (Joint Criminal Liability) is a victim-centered, far-reaching philosophy
often used to prosecute the senior leadership as well as low-level individual
perpetrators accountable for a broad range of crimes perpetrated in the names of
former leaders. For example, there are substantial benefits to its use in its
wide version (e.g.) when an international court custom the doctrine to hold a
particular defendant liable for the range of crimes accompanying with regional
ethnic cleansing in which he played some part.
At the same time, this doctrine can be ill-treated if used by a dishonest
national government to recommend that all persons who provide any sort of
support to a terrorist organization, however loosely defined, become liable for
all crimes committed by its members. Stated differently, the unrestrained use of
joint criminal liability can pose serious dangers to the fairness of the
In practice, JCL embodies a transfer of power from international judges to
prosecutors, who have enormous discretion to decide how much offence to allocate
to any particular defendant. Because the doctrine is so loose, JCL thoroughly
approaches a theory of guilt by association. When used properly, JCL can support
in connecting participants in a criminal enterprise who operated far from the
crime scene. When used selectively this view denotes the infinite possibilities
for unlimited interpretations and abuses.
The first such category is represented by cases where all co-defendants, acting
pursuant to a common design, possess the same criminal intention; for instance,
the formulation of a plan among the co-perpetrators to kill, where, in effecting
this common design (and even if each co-perpetrator carries out a different role
within it), they nevertheless all possess the intent to kill 
- Cornell University Law School, Three Conceptual Problems with the
Doctrine of Joint Criminal Enterprise
- Sanford H. Kadish, Complicity, Cause and Blame: A Study in the
Interpretation of Doctrine, 73 Cal. L. Rev. 323, 342-46 (1985).
- Grace E. Mueller, The Mens Rea of Accomplice Liability, 61 S. Cal. L.
Rev. 2169 (1988).
- 478 N.W.2d 606 (Iowa 1991).
- Ayers also removed the serial numbers from the weapon. State v. Ayers,
478 N.W.2d 606, 607 (Iowa 1991).
- State v. Ayers, 478 N.W.2d 606, 608 (Iowa 1991) (internal citations
- Mahbub Shah v. Emperor, AIR 1945 PC 118
- People. v. Brigham, 216 Cal.App. 3d 1039 (relying on the facts that the
principal perpetrator was known by the defendant to be hardheaded and obstreperous to uphold a conviction based on the murder that was not
initially contemplated); Alvarez, 755 F.2d 380 (relying on specific
statements of the defendants' co-conspirators).
- Prosecutor v Duško Tadić, Case No IT-94-1-A, Judgment, ¶ 228 (ICTY App
July 15, 1999).
- Sanford H. Kadish, Reckless Complicity, 87 J. Crim. L. & Criminology
369, 374-75 (1997).
- United States v. Eberhardt, 417 F.2d 1009, 1013 (4th Cir. 1969).
- 100 F.2d 401 (1938). See also Candace Courteau, The Mental Element
Required for Accomplice Liability: A Topic Note, 59 La. L. Rev. 325, 331
(1998); Nye & Nissen v. U.S., 336 U.S. 613, 619 (1949); People v. Green, 130
Cal. App. 3d 14 (Miller, J., concurring).
- Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC
- The Tort of Conspiracy and Civil Liability, The Cambridge Law Journal
- Myint Soe Some Aspects of Common Intention in the Penal Code of
Singapore and West Malays
- A.I.R. 1925 P.C. 1.
- A.I.R. 1945 P.C. 118.
-  M.L.J. 66
- 3  2 M.L.J. 75. The court seems to have been influenced by Bashir
(supra n. 28) though it does not refer to that deci
- Joint Criminal Enterprise, New form of individual criminal
responsibility, an Article by Jasmina Pjani, OKO lawyer
- Tadic, (Appeals Chamber), July 15, 1999, para. 195-196, 202-204