Common Intention vs Common Object under BNS 2023: Key Differences Explained

Introduction: –

As a general rule, criminal liability is personal in nature, meaning that an individual is responsible only for his or her own acts. Difficulties arise, however, where offences are committed collectively, making it challenging to determine the precise role played by each participant

To deal with such situations, criminal law recognises the doctrine of constructive or joint criminal liability. Under this doctrine, all persons acting together in the commission of an offence may be held responsible, even if only one person performs the final criminal act.

Under the Indian Penal Code, 1860 (IPC), this doctrine was embodied in Section 34, relating to Common Intention, and Sections 141 and 149, relating to Unlawful Assembly and Common Object.

With the enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS), these principles have been substantially retained under Section 3(5) (Common Intention) and Sections 189 and 190 (Unlawful Assembly and Common Object).

Although both doctrines impose joint criminal liability, they differ in their scope and application. Common Intention is based on a shared intention or prior meeting of minds among two or more persons, requiring their participation in the commission of the offence. In contrast, Common Object is based on the membership of an unlawful assembly consisting of five or more persons and does not require proof of a prior agreement or active participation by every member. Liability arises if the offence is committed in prosecution of the common object or is one that the members knew was likely to be committed.

A clear understanding of the doctrines of Common Intention and Common Object is essential for the proper administration of criminal justice, particularly in cases involving murder, rioting, dacoity, mob violence, and other offences committed by groups. This article examines their meaning, statutory provisions, essential ingredients, landmark judicial decisions, and the key distinctions between the two doctrines under the Bharatiya Nyaya Sanhita, 2023.

Statutory Provisions under the Bharatiya Nyaya Sanhita, 2023

The Bharatiya Nyaya Sanhita, 2023 has replaced the Indian Penal Code, 1860. However, the legal principles relating to Common Intention and Common Object have largely remained unchanged, with only the section numbers being revised.

1. Section 3(5), BNS – Common Intention
2. Section 3(5) provides:
3. “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.”
4. This provision corresponds to Section 34 of the IPC and embodies the doctrine of common intention, making every participant jointly liable for acts committed in furtherance of a shared intention.
5. Section 189, BNS – Unlawful Assembly
6. Section 189 corresponds to Section 141 of the IPC and defines an unlawful assembly. An assembly becomes unlawful when five or more persons share any of the unlawful objects specified in the provision, such as committing an offence or using criminal force.
7. Section 190, BNS – Liability of Members of an Unlawful Assembly
8. Section 190 corresponds to Section 149 of the IPC. It provides that every member of an unlawful assembly is liable for an offence committed by any member in prosecution of the common object of the assembly or for an offence that the members knew was likely to be committed.

Thus, while the Bharatiya Nyaya Sanhita, 2023 has introduced new numbering, it has substantially retained the well-established doctrines of Common Intention and Common Object, along with the judicial principles developed under the IPC.

Concept of Common Intention: –

The expression “common intention” has not been defined under the Bharatiya Nyaya Sanhita, 2023. Its meaning has therefore been developed through judicial interpretation. It signifies a shared criminal intention or meeting of minds between two or more persons acting together to commit a particular offence.

The doctrine is founded on the principle that when two or more persons act together with the same criminal intention, each becomes responsible for the entire act.

Under Section 3(5), BNS, every participant is liable for the entire criminal act committed in furtherance of the common intention.

Object of the Doctrine: –

• To prevent offenders from escaping liability because the individual who caused the final injury cannot be identified.
• To ensure that all persons acting with a common criminal intention are held equally responsible.
• To strengthen the effective administration of criminal justice against group offences.

Essential Ingredients of Common Intention: –

1. Criminal Act by Several Persons
   1. The offence must be committed by two or more persons acting together.
2. Existence of Common Intention
   1. There must be a shared intention to commit the particular offence.
3. Meeting of Minds
   1. A prior meeting of minds or pre-arranged plan must exist, though it may develop immediately before or during the occurrence.
4. Participation
   1. Every accused must participate in some manner in furtherance of the common intention. Direct commission of the offence is not necessary.
5. Act in Furtherance of Common Intention
   1. The criminal act must be committed in execution of the common intention shared by all participants.

Concept of Common Object: –

Common object refers to the shared purpose or design that unites the members of an unlawful assembly. It is governed by Sections 189 and 190 of the Bharatiya Nyaya Sanhita, 2023.

• Section 189 defines an unlawful assembly.
• Section 190 imposes liability on every member of the unlawful assembly for offences committed in prosecution of its common object.

The expression “common object” is not defined in the BNS or the IPC; its meaning has been developed through judicial interpretation.

Unlike Common Intention, the doctrine of Common Object does not require proof of a prior agreement or meeting of minds. Liability arises because a person voluntarily becomes a member of an unlawful assembly sharing a common unlawful purpose.

Object of the Doctrine: –

• To prevent organised violence and group offences.
• To maintain public order and peace.
• To ensure that members of an unlawful assembly do not escape liability merely because they did not commit the overt act.
• To protect society from crimes committed by groups.

Essential Ingredients of Common Object: –

1. Existence of an Unlawful Assembly – There must be an unlawful assembly as defined under Section 189, BNS.
2. Five or More Persons – The assembly must consist of at least five persons.
3. Existence of a Common Object – The members must share a common unlawful object, which may arise on the spot without prior planning.
4. Membership of the Unlawful Assembly – The accused must be a member of the unlawful assembly at the time of the offence. Active participation is not necessary.
5. Offence Committed in Prosecution of the Common Object – The offence must be committed in furtherance of the common object or be one that the members knew was likely to be committed.

Landmark Judicial Decisions: –

Common Intention

1. Mahbub Shah v. Emperor

Principle:

• Common intention requires a prior meeting of minds or pre-arranged plan.
• Mere presence at the scene of the offence is not sufficient to attract joint liability.

Importance: This case laid down the basic principles governing Common Intention and continues to be followed by Indian courts.

2. Barendra Kumar Ghosh v. King Emperor

Principle:

• A person need not commit the actual criminal act.
• Participation in furtherance of the common intention is enough to make every participant equally liable.

Importance: Laid the foundation of constructive criminal liability.

3. Pandurang v. State of Hyderabad

Principle:

• Common intention may develop on the spot.
• There must, however, be a meeting of minds before the offence is completed.

Importance: Clarified that prior planning need not be prolonged.

Common Object

1. Lalji v. State of Uttar Pradesh

Principle:

• Mere membership of an unlawful assembly is sufficient.
• Active participation or an overt act is not necessary for liability.

Importance: Leading authority on the doctrine of common object.

2. Masalti v. State of Uttar Pradesh

Principle:

• In cases involving a large unlawful assembly, the prosecution need not prove the specific role of every accused.
• Membership of the unlawful assembly is sufficient if the common object is established.

Importance: Landmark case on liability under unlawful assembly.

3. Chittarmal v. State of Rajasthan

Principle:

• Common intention requires a prior meeting of minds.
• Common object requires only a shared unlawful purpose.
• The scope of Section 149 IPC (now Section 190 BNS) is wider than Section 34 IPC (now Section 3(5) BNS).

Distinction Between Common Intention and Common Object: –

Although both Common Intention and Common Object impose constructive criminal liability, they differ in their nature, ingredients, and scope.

The Supreme Court has consistently held that Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 and Sections 189–190 of the Bharatiya Nyaya Sanhita, 2023 are distinct provisions and apply in different situations. The prosecution must establish the ingredients of the particular provision relied upon.

Basis of Distinction	Common Intention	Common Object
Statutory Provision	Section 3(5), BNS (formerly Section 34 IPC)	Sections 189 & 190, BNS (formerly Sections 141 & 149 IPC)
Meaning	A shared intention or meeting of minds to commit a criminal act.	A shared unlawful purpose of an unlawful assembly.
Minimum Number of Persons	Two or more persons.	Five or more persons.
Basis of Liability	Based on common intention and participation.	Based on membership of an unlawful assembly having a common object.
Prior Meeting of Minds	Essential, though it may develop on the spot.	Not necessary; the common object may arise suddenly.
Participation	Some participation by each accused is generally required.	Mere membership of the unlawful assembly may be sufficient.
Nature of Liability	Joint/constructive liability based on shared intention.	Vicarious liability based on membership of the unlawful assembly.
Scope of Liability	Comparatively narrower.	Comparatively wider, as liability extends to every member of the unlawful assembly.
Burden of Proof	The prosecution must prove common intention and participation.	The prosecution must prove the existence of an unlawful assembly, common object, and membership.
Object of the Provision	To punish persons acting together with a common intention to commit an offence.	To prevent organised violence and punish offences committed by unlawful assemblies.
Example	Two persons jointly plan and commit a robbery.	Six persons form an unlawful assembly to dispossess a landowner, and one member commits murder in prosecution of the common object.
Leading Cases	Mahbub Shah v. Emperor (AIR 1945 PC 118), Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1), Pandurang v. State of Hyderabad (AIR 1955 SC 216).	Lalji v. State of Uttar Pradesh ((1989) 1 SCC 437), Masalti v. State of Uttar Pradesh (AIR 1965 SC 202), Chittarmal v. State of Rajasthan ((2003) 2 SCC 266).

Important Judicial Principles: –

The courts have laid down the following key principles for interpreting Common Intention under Section 3(5), BNS and Common Object under Sections 189 and 190, BNS.

Principles Relating to Common Intention

1. Common intention requires a prior meeting of minds, though it may develop on the spot (Mahbub Shah v. Emperor; Pandurang v. State of Hyderabad).
2. Mere presence at the scene of the offence is not sufficient to establish liability.
3. Common intention is inferred from the conduct of the accused and surrounding circumstances.
4. A person need not perform the principal act to incur liability if he participates in furtherance of the common intention (Barendra Kumar Ghosh v. King Emperor).
5. Section 3(5), BNS is a rule of constructive liability, not a substantive offence.

Principles Relating to Common Object

1. An unlawful assembly must consist of five or more persons.
2. No prior meeting of minds is required; the common object may arise suddenly (Mizaji v. State of Uttar Pradesh).
3. Mere membership of an unlawful assembly may be sufficient for liability (Lalji v. State of Uttar Pradesh).
4. Active participation or an overt act is not necessary (Masalti v. State of Uttar Pradesh).
5. Liability extends to offences committed in prosecution of the common object or those likely to be committed by the members.

Conclusion: –

The doctrines of Common Intention and Common Object are important principles of constructive criminal liability under the Bharatiya Nyaya Sanhita, 2023. Although both hold multiple persons liable for offences committed collectively, they differ in their scope and essential requirements.

Common Intention under Section 3(5), BNS is based on a shared intention or meeting of minds among two or more persons and generally requires participation in the commission of the offence. In contrast, Common Object under Sections 189 and 190, BNS is based on membership of an unlawful assembly of five or more persons and does not require a prior meeting of minds or active participation by every member.

The Supreme Court and the Privy Council have consistently clarified these distinctions through landmark decisions such as Mahbub Shah v. Emperor, Barendra Kumar Ghosh v. King Emperor, Pandurang v. State of Hyderabad, Lalji v. State of Uttar Pradesh, and Masalti v. State of Uttar Pradesh. These principles continue to guide the interpretation of the corresponding provisions under the BNS.

In conclusion, a clear understanding of the distinction between Common Intention and Common Object is essential for the proper application of criminal law.

Both doctrines play an important role in dealing with offences committed by groups. While Common Intention focuses on a shared intention among the accused, Common Object is based on membership of an unlawful assembly. Understanding this distinction helps in determining criminal liability correctly and ensures that justice is administered fairly.

References: –

1. The Bharatiya Nyaya Sanhita, 2023, Government of India, Sections 3(5), 189 and 190.
2. The Indian Penal Code, 1860, Sections 34, 141 and 149.

Case Laws

1. Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1.
2. Mahbub Shah v. Emperor, AIR 1945 PC 118.
3. Pandurang v. State of Hyderabad, AIR 1955 SC 216.
4. Lalji v. State of Uttar Pradesh, (1989) 1 SCC 437.
5. Masalti v. State of Uttar Pradesh, AIR 1965 SC 202.
6. Chittarmal v. State of Rajasthan, (2003) 2 SCC 266.

Online Sources

1. India Code, Government of India, The Bharatiya Nyaya Sanhita, 2023. India Code – Bharatiya Nyaya Sanhita, 2023
2. Supreme Court Cases (SCC Online) – Case law database.
3. Manupatra – Legal database.

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