The Supreme Court's decision in Maheshwari Jadav v. State of Bihar, 2023 Live Law (SC) 1063, while seemingly reiterating a settled principle of law, serves as a crucial reminder of the nuanced application of Section 34 of the Indian Penal Code (IPC)- now Section 3 (5) of the Bharatiya Nyaya Sanhita (BNS), 2023 - concerning common intention.

This judgment, delivered in paragraph 7, succinctly clarifies that establishing liability under Section 34 IPC does not necessitate proving a pre-existing conspiracy or premeditation. Instead, it emphasizes the possibility of forming a common intention spontaneously, even moments before or during the commission of a criminal act. This article delves into the significance of this pronouncement, its implications for criminal jurisprudence, and its practical application in adjudicating cases involving multiple accused.

Section 34 of the IPC embodies the principle of vicarious liability in criminal law. 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." The core of this provision lies in the existence of a "common intention," which distinguishes mere presence or passive acquiescence from active participation with a shared criminal objective.

The crucial aspect highlighted in Maheshwari Jadav is the timing of the formation of this common intention. The judgment explicitly rejects the notion that it must be hatched well in advance. This is a significant clarification that avoids unduly restricting the application of Section 34 to only those cases where a formal conspiracy can be proven. Often, criminal acts, particularly those occurring in the heat of the moment, involve a spontaneous convergence of minds towards a shared unlawful goal. To insist on prior planning in every such instance would create a significant loophole, allowing individuals who actively participate in a crime with a contemporaneously formed common intention to evade liability.

The Supreme Court's reiteration in Maheshwari Jadav reinforces a long-standing legal position. Several landmark judgments have previously established this principle. For instance, the case of Barendra Kumar Ghosh v. Emperor (1925) is often cited as a foundational judgment clarifying that common intention implies a pre-arranged plan, but this plan can develop even at the scene of the crime. Subsequent pronouncements have further solidified this understanding, emphasizing the need to discern the shared intention from the actions and conduct of the accused at or around the time of the incident.

The significance of this principle lies in its practical application during criminal trials. Prosecutors often face challenges in unearthing direct evidence of a prior conspiracy. Witnesses may be hostile, and direct communication between the accused before the crime might be difficult to establish. In such scenarios, the ability to prove common intention based on the actions and behaviour of the accused during the commission of the crime becomes paramount. Factors such as their presence at the scene, their overt acts, their coordination, and their subsequent conduct can all contribute to inferring the existence of a shared intention.

However, it is crucial to distinguish between common intention and similar intention. Mere similarity of intention amongst several individuals acting independently does not attract the application of Section 34. The essence of common intention lies in a pre-concerted plan, even if formed at the spur of the moment, where the actions of each individual are directed towards achieving the shared criminal objective. There must be a meeting of minds and a concerted effort.

The judgment in Maheshwari Jadav serves as a reminder for courts to carefully analyze the evidence presented to determine whether a common intention, even if formed instantaneously, can be reasonably inferred from the circumstances. This requires a meticulous examination of the roles played by each accused, their interactions, and the overall unfolding of the criminal event. The court must be satisfied that the accused acted in furtherance of a shared goal, and not merely coincidentally committed similar acts.

Furthermore, this principle has significant implications for ensuring justice in cases involving mob violence or spontaneous criminal outbursts. In such situations, it might be challenging to pinpoint a pre-existing conspiracy. However, if the evidence demonstrates that the individuals involved acted in concert with a shared objective, even if formed on the spot, Section 34 IPC provides a crucial legal tool to hold each participant accountable for the collective criminal act.

In conclusion, the Supreme Court's reiteration in Maheshwari Jadav v. State of Bihar regarding the formation of common intention is a vital affirmation of a well-established legal principle. It underscores the fluidity of common intention, emphasizing that it can arise not only through prior planning but also spontaneously during the commission of a crime. This clarification is crucial for the effective administration of criminal justice, allowing courts to hold accountable individuals who act in furtherance of a shared criminal objective, even in the absence of proof of a pre-existing conspiracy.

The judgment serves as a timely reminder for courts to meticulously analyze the conduct of the accused to discern the existence of a common intention, ensuring that the principle of vicarious liability under Section 34 IPC is applied justly and effectively.
 
Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: imranwahab216@gmail.com, Ph no: 9836576565