BNS S.3 states nine general explanations that operate across the entire Sanhita. They are not substantive offences; they are interpretive rules that tell the reader how to apply every definition, penal provision and illustration. The most important of these, S.3(5) on common intention, is effectively a mode of liability in its own right.
BNS S.3(1) = IPC S.6. BNS S.3(4) = IPC S.33. BNS S.3(5) = IPC S.34. BNS S.3(6) = IPC S.35. BNS S.3(7) = IPC S.37. BNS S.3(8) = IPC S.38. BNS S.3(9) = IPC S.39. Confidence: high, directly from the gazetted text.
The Nine General Explanations
| Sub-section | Content | IPC Equivalent |
|---|---|---|
| (1) | Every definition and penal provision is subject to the General Exceptions (Ch.III), even if not expressly stated | IPC S.6 |
| (2) | Every explained expression carries that meaning throughout | IPC S.7 |
| (3) | Property in possession of spouse, clerk or servant on account of the person is in that person's possession | IPC S.27 |
| (4) | Words referring to acts extend to illegal omissions, unless a contrary intention appears | IPC S.33 |
| (5) | Common intention: when a criminal act is done by several persons in furtherance of the common intention of all, each is liable as if done by him alone | IPC S.34 |
| (6) | Criminal knowledge: where an act is criminal only by reason of criminal knowledge or intention, each person joining with such knowledge or intention is liable as if done by him alone | IPC S.35 |
| (7) | Causing an effect partly by act and partly by omission is the same offence as causing it wholly by either | IPC S.37 |
| (8) | Cooperation: when an offence is committed by several acts, whoever intentionally cooperates by doing any one of those acts commits the offence | IPC S.38 |
| (9) | Different offences from same act: where several persons are engaged in one criminal act, they may be guilty of different offences | IPC S.39 |
S.3(5): Common Intention (The Most Examined)
When a criminal act is done by several persons in furtherance of the common intention of all, each of those persons is liable for that act in the same manner as if it were done by him alone.
Requirements
| Requirement | Explanation |
|---|---|
| Several persons | Two or more |
| A criminal act | An act which constitutes an offence |
| In furtherance of the common intention | The act must be done to advance the shared plan |
| Of all | Every person sought to be made liable must share the common intention |
What "Common Intention" Means
Common intention is a prior meeting of minds: a pre-arranged plan or a plan formed during the course of events but before the act. It requires that each participant knew what was to be done and intended that it should be done.
Facts: Two groups clashed. A person from one group fired and killed a member of the other. Others in the group were sought to be made liable under S.34 IPC (now S.3(5) BNS).
Issue: What is required to establish common intention?
Held: Common intention requires a prior concert or a pre-arranged plan. Mere simultaneous presence, or even simultaneous attack, is not enough if the participants did not share the same intention. Each must have intended the particular criminal act done.
Relevance: The leading Privy Council authority on common intention. Cite to distinguish common intention from common object (S.190 BNS, formerly S.149 IPC).
Facts: Several accused attacked the deceased. The question was whether all shared the common intention to cause death.
Held: Common intention may be inferred from conduct and the surrounding circumstances. It need not be proved by direct evidence. But the inference must be the only reasonable one.
Relevance: Establishes that common intention is proved inferentially and need not be shown by prior agreement in so many words.
Common Intention Distinguished from Common Object
| Basis | Common Intention (S.3(5)) | Common Object (S.190) |
|---|---|---|
| Number | Two or more persons | Five or more (unlawful assembly) |
| Mental element | Pre-arranged plan, prior concert | Object of the assembly, which may be formed on the spot |
| Participation | Each must participate in the criminal act | Membership of the assembly is enough, even without participation |
| Liability | Each is liable as if he did the act himself | Each is liable for the offence committed in prosecution of the common object |
| Proof | Inferential, from conduct and circumstances | Easier; follows from membership and awareness of the object |
S.3(4): Words Referring to Acts Include Omissions
This explanation ensures that wherever the Sanhita creates an offence by reference to an "act", a person who achieves the same result by a deliberate illegal omission is equally liable.
Example: BNS S.100 defines culpable homicide as causing death by doing an act with the requisite intention or knowledge. S.3(4) makes clear that deliberately starving a person to death (an omission) is equally culpable homicide.
S.3(7) extends this: causing an effect partly by an act and partly by an omission is the same offence as causing it wholly by either.
S.3(8): Cooperation in a Criminal Act
Where an offence is committed by means of several acts, whoever intentionally cooperates in the commission by doing any one of those acts commits that offence.
Example (BNS Illustration): A and B agree to murder Z by separately administering small doses of poison over several days. Each dose alone would not kill. A administers on some days, B on others. Z dies from the cumulative effect. Both are guilty of murder, each having intentionally cooperated by doing one of the acts making up the offence.
S.3(9): Different Offences from the Same Act
Where several persons are engaged in one criminal act, they may be guilty of different offences depending on their respective mental states.
Example (BNS Illustration): A attacks Z under grave and sudden provocation that reduces his offence to culpable homicide not amounting to murder. B, who harbours ill-will towards Z and was not provoked, assists A in the killing. A is guilty only of culpable homicide; B is guilty of murder.
Recall Check
- State the rule in S.3(5) and name the Privy Council case that defines common intention.
- What is the effect of S.3(4) on the word "act"?
- How does common intention differ from common object?
- Can persons engaged in the same criminal act be guilty of different offences?
Key Cases
Mahboob Shah v Emperor (1945) Mahboob Shah v Emperor 1945
Issue: What common intention requires.
Rule: Prior concert or a pre-arranged plan; mere simultaneous presence is not enough.
Held: Accused who did not share the shooter's intention could not be made liable.
Pandurang v State of Hyderabad (1955) Pandurang v State of Hyderabad 1955
Issue: Whether common intention must be proved by direct evidence.
Rule: Common intention may be inferred from conduct and circumstances.
Held: The inference was justified on the facts.
Distinctions
| Basis | S.3(5) (common intention) | S.3(8) (cooperation) |
|---|---|---|
| Mechanism | Each is liable for the whole act done in furtherance of the shared plan | Each is liable for the offence constituted by several acts, having done one |
| Requirement | Common intention of all | Intentional cooperation in the commission |
| Example | A holds, B stabs. Both liable for murder under S.3(5) | A and B administer poison on alternate days. Both liable under S.3(8) |
| Overlap | Often invoked together | Technically distinct: S.3(8) addresses contribution to a composite offence |
| Basis | S.3(5) (common intention) | S.3(6) (criminal knowledge) |
|---|---|---|
| When engaged | Where the act is criminal by its nature | Where the act is criminal only by reason of criminal knowledge or intention |
| Mental element | Common intention to do the criminal act | Each joins with the requisite knowledge or intention |
| Example | A and B share the intention to murder Z | A and B together sell adulterated food, each knowing it is adulterated |
Flashcards
State the rule in BNS S.3(5).
When a criminal act is done by several persons in furtherance of the common intention of all, each is liable as if the act were done by him alone.
What did Mahboob Shah v Emperor establish?
Common intention requires prior concert or a pre-arranged plan. Mere simultaneous presence or even simultaneous attack without a shared plan is insufficient.
Can common intention be proved by circumstantial evidence?
Yes. Pandurang v State of Hyderabad (1955) holds it may be inferred from conduct and surrounding circumstances.
What does S.3(4) do?
It extends words referring to "acts" to include illegal omissions, unless a contrary intention appears from the context.
Can different persons be guilty of different offences for the same criminal act?
Yes. S.3(9) so provides. Example: one person may be guilty of murder and another only of culpable homicide, depending on their respective states of mind.
Exam Scenario
Problem: Ajay and Bimal plan to rob Chetan's shop. Their plan is to restrain Chetan, take the cash, and leave. During the robbery, Bimal suddenly pulls out a knife and stabs Chetan, killing him. Ajay had no knowledge that Bimal carried a knife and no intention that anyone should be hurt beyond restraint. The prosecution charges both with murder under BNS S.103 read with S.3(5). Advise Ajay.
Step 1: Identify the common intention
The common intention was to rob Chetan's shop by restraining him and taking cash. This is established by the pre-arranged plan.
The question is whether the common intention extended to murder.
Step 2: Apply Mahboob Shah to the murder charge
Under Mahboob Shah v Emperor (1945), each person sought to be made liable under S.3(5) must share the common intention to do the particular criminal act. The criminal act here is murder.
| Ajay's position | Assessment |
|---|---|
| Did Ajay intend that Chetan should be killed? | No; the plan was restraint only |
| Did Ajay know Bimal carried a knife? | No |
| Did Ajay participate in the stabbing? | No |
| Was murder a probable consequence of the robbery plan? | Not inherently; the plan involved no weapon |
The common intention to murder is not established against Ajay.
Step 3: Test whether S.190 (common object) assists the prosecution
S.190 requires five or more persons. There are only two. S.190 does not apply.
Step 4: Fix Ajay's liability for robbery
The common intention to rob is established. Ajay is liable for robbery under BNS S.309 read with S.3(5). If the robbery involved voluntarily causing hurt or wrongful restraint, S.309(6) (robbery with hurt) applies.
But he is not liable for murder unless the prosecution can show that murder was within the common intention or was a probable consequence of the plan that Ajay participated in.
S.3(5) does not create vicarious liability for all consequences. It makes each person liable only for acts done in furtherance of the common intention. If the common intention was robbery, not murder, the murder was Bimal's individual act.
Do not confuse common intention with common object. Under S.190 (common object of an unlawful assembly), a member is liable for any offence committed in prosecution of the common object or known to be likely. But S.190 requires five persons, and only two are involved here.
Conclusion. Ajay is liable for robbery under S.3(5) but not for murder. The murder charge under S.103 read with S.3(5) fails against Ajay because the common intention did not extend to killing.
See Also
- Abetment : an alternative mode of liability where the common intention route fails.
- Offences against Public Tranquillity : S.190 (common object of unlawful assembly), the five person equivalent.
- Actus Reus and Mens Rea : the mental element that S.3(5) attributes to each participant.