Section 35 of the Indian Penal Code: Constructive Liability and the Mental Element

Section 35 of the Indian Penal Code: Constructive Liability and the Mental Element

Introduction

Section 35 of the Indian Penal Code, 1860 (IPC) is one of a cluster of provisions (ss. 34–38) that expand criminal liability beyond the paradigm of individual, solitary wrongdoing. While Section 34 predicates joint liability on the existence of a common intention, Section 35 operates where the act in question is “criminal only by reason of its being done with a criminal knowledge or intention.” The provision therefore raises two enduring doctrinal questions: (i) how the prosecution proves the requisite mens rea when several actors participate with potentially different mental states, and (ii) how Section 35 interfaces with the broader principles of constructive liability developed in case-law under Sections 34 and 149. This article critically examines these questions, drawing upon leading judgments of the Supreme Court and High Courts as well as the theoretical foundations of Indian criminal jurisprudence.

Statutory Context

Section 35 reads:

When an act is criminal only by reason of its being done with a criminal knowledge or intention, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done with that knowledge or intention by him alone.

Three features emerge: (a) the act is a single, indivisible commission; (b) criminality is solely dependent on the mental element; and (c) liability is individualised—each participant is punished “as if” he alone did the act with the culpable state of mind. Unlike Section 34, the phrase “in furtherance of the common intention” is absent; joint action is not the fulcrum—culpable mens rea is. Sections 36–38 then provide ancillary rules (e.g., different effects of the same act, cooperation in different offences), confirming that Section 35 specifically targets knowledge/intention-centric crimes.

Mens Rea under Section 35: Judicial Expositions

1. Proving Intention or Knowledge

In Virsa Singh v. State of Punjab[1] the Supreme Court dissected “intention” under Section 300 (“thirdly”), insisting on a two-stage test: subjective intent to inflict the particular injury and objective sufficiency of that injury to cause death. Although Virsa Singh concerned homicide, its analytical template guides courts when Section 35 is invoked: the prosecution must establish which participant possessed the requisite subjective mental element, because liability attaches only to “such persons.” Consequently, participants lacking that state of mind, though physically involved, may escape liability for the aggravated offence.

2. Presumption and Rebuttal of Mens Rea

Nathulal v. State of Madhya Pradesh[2] reaffirmed that, absent explicit statutory exclusion, mens rea is presumed to be an element of every offence. Section 35 incorporates this principle legislatively; it requires proof of knowledge or intention before the constructive net can be cast. Courts therefore scrutinise evidentiary indicators—motive, weapon selection, concerted conduct—to infer mental states, echoing the methodology in Nathulal and Virsa Singh.

3. Intoxication and Specific Intention

In Macherla Balaswamy v. State[3] the Madras High Court analysed Sections 85–86 IPC, holding that voluntary intoxication rarely negates knowledge. When Section 35 is applied to group offences committed under intoxication (e.g., riotous violence), the court must still determine who retained sufficient consciousness to harbour the requisite knowledge or intention.

Section 35 vis-à-vis Section 34: Confluence and Divergence

Conceptual Distinction

  • Section 34: Liability arises from participation in a criminal act done in furtherance of a common intention. The focus is collective design.
  • Section 35: Liability hinges on each participant’s individual mental state where that state is the sole basis of criminality.

The Privy Council’s admonition in Barendra Kumar Ghose v. King-Emperor[4] that inference of common intention must be “necessary” underscores judicial caution in extending Section 34. Section 35 mitigates over-extension by tailoring liability only to those with proven culpable mens rea. In State of Karnataka v. G. Lakshman[5] and Gurdatta Mal v. State of U.P.[6], the Supreme Court reiterated that Section 34 does not create a substantive offence; by contrast, Section 35 legislatively attributes substantive guilt to individual knowledge/intention within joint activity.

Practical Overlap

Notwithstanding conceptual differences, prosecutorial pleadings often cite both sections in the alternative. For instance, in the Bhopal Gas Tragedy prosecution (Keshub Mahindra v. State of M.P.) the charges framed under Sections 304 Pt II, 326, 324 and 429 were read inter alia with Section 35 to rope in company directors who shared knowledge of hazardous plant operations[7]. The Supreme Court, refusing to quash charges, held that Section 35 “could at least prima facie be invoked” where the common thread was awareness of lethal risk emanating from collective operational decisions. Here, Section 34 was inadequate because the allegation was not of a concerted plan to kill but of shared knowledge of risk—the precise domain of Section 35.

Corporate and Vicarious Liability

Section 35 has gained renewed relevance in corporate crime. In Keshub Mahindra the Court emphasised that directors “at the helm of affairs” bear constructive liability when the act becomes criminal “on account of their sharing common knowledge” of the dangerous conditions[7]. The doctrine dovetails with the “directing mind and will” principle recognised in Esso Standard Inc. v. Udharam Bhagwandas Japanwalla but operates conversely: instead of attributing directors’ intent to the company, Section 35 attributes the company’s hazardous act to the directors possessing the requisite knowledge. Recent High Court dicta, e.g., Venus Goyal v. State of Punjab[8], caution that pleadings must disclose prima facie prior concert or planning even under Section 34; by parity of reasoning, allegations under Section 35 must articulate the specific knowledge/intention attributable to each director or officer.

Limits and Safeguards

1. Requirement of “Same Act”

Because Section 35 speaks of “the act,” courts must ensure that the physical conduct is singular, not multiple offences. This distinction prevents duplication of liability and aligns with Section 71 IPC and Section 35 of the Code of Criminal Procedure (consecutive sentences) as illustrated in Puranmal Agarwalla[9] and colonial precedents such as Emperor v. Subrao Sesharao[10].

2. Proof Beyond Presence

Section 35 does not fasten guilt on mere presence at the scene. In Nagaraja v. State of Karnataka[11] the Supreme Court warned that past enmity alone is insufficient to infer common intention under Section 34; analogously, mere association without demonstrable knowledge cannot ground liability under Section 35.

3. Differential Sentencing

Because liability is individualised, sentencing should reflect the degree of knowledge or intention proved against each participant. The Bhopal prosecution, for instance, differentiates between on-site managers (charged substantively) and remote directors (charged via Section 35 IPC).

Critical Appraisal

Section 35 elegantly balances collective accountability with the cardinal principle that moral blameworthiness depends on the mental element. Nevertheless, two concerns merit attention. First, the provision’s textual economy provides little guidance on evidentiary thresholds, leaving wide discretion to courts. Second, in corporate contexts, the conflation of managerial negligence with “knowledge” risks diluting the stringent standard of subjective awareness envisaged by the drafters. Legislative clarification distinguishing varying degrees of culpable knowledge (e.g., recklessness versus conscious disregard) could enhance doctrinal coherence.

Conclusion

Section 35 IPC occupies a distinctive niche within Indian criminal law, attaching individual liability to group conduct where criminality turns on knowledge or intention. Jurisprudence from Virsa Singh to Keshub Mahindra demonstrates the courts’ commitment to preserving the integrity of the mental element while ensuring that collective wrongdoing does not evade sanction. As complex organisational crimes proliferate, Section 35 will likely serve as a pivotal tool—provided courts remain vigilant in demanding rigorous proof of culpable mental states for each accused.

Footnotes

  1. Virsa Singh v. State of Punjab, AIR 1958 SC 465.
  2. Nathulal v. State of Madhya Pradesh, (1966) 3 SCR 57.
  3. Macherla Balaswamy v. State, AIR 1951 Mad 718.
  4. Barendra Kumar Ghose v. King-Emperor, (1924) ILR 52 Cal 197.
  5. State of Karnataka v. G. Lakshman, 1993 Cri LJ 1121 (Kar HC).
  6. Gurdatta Mal v. State of Uttar Pradesh, AIR 1965 SC 257.
  7. Keshub Mahindra v. State of Madhya Pradesh, (1996) 6 SCC 129.
  8. Venus Goyal v. State of Punjab, 2023 SCC OnLine P&H 8521.
  9. Puranmal Agarwalla v. State of Orissa, AIR 1958 SC 17.
  10. Emperor v. Subrao Sesharao, 1925 SCC OnLine Bom 143.
  11. Nagaraja v. State of Karnataka, (2008) 17 SCC 505.