When Act is Criminal by Reason of its being Done with a Criminal Knowledge or Intention - Section 35

How to file/defend your case for IPC 35 offence?

The case under Section 35 will simply be whistled by registering an FIR at the nearest police station to the place of occurence.

How to defend?

When someone is charged with offences u/s 35 IPC or is accused of the provisions u/s 35 IPC, then it is advised that he/she shall hire an expert lawyer who has experience in dealing with such cases. 

Also, at the trial in the court of law, an expert lawyer would strive to defend your case and would for sure benefit you, either by getting an acquittal order in your favor or by reducing your punishment.

Sec 35 IPC latest judgements

In recent years, there have been a number of important Supreme Court judgments that have clarified the scope and application of Section 35. In the 2021 case of Afrahim Sheikh and Ors. v. State of Gujarat, the Supreme Court held that common intention can be established even if there is no prior concert or pre-planning. The Court stated that "the crucial test is that such plan must precede the act constituting an offence."
Another important judgment is the 2022 case of Harbans Singh v. State of Punjab. In this case, the Supreme Court held that mere presence or passive participation by a person at the scene of crime is not sufficient to establish common intention. The Court stated that "there must be active participation in the act or an act preparatory to it."

Important Judicial Pronouncements

Digantha Mudrana Vs. B. H. Girish Pai (2018)

Facts: In the present case, a petition was filed under Section 482 of the Criminal Procedure Code, to quash the entire proceedings of the Additional Civil Judge. The petitioner is accused No.2 within the said case. The 1st accused was the proprietor and owner of a Kannada Fortnightly Lathi Charge newspaper, which had its huge circulation in the District of Dakshina Kannada.

In reference to alleged defamatory news published within the newspaper, Lathi Charge, the complainant initiated action under Section 200 of Cr.P.C. The second accused contended that it had nothing to do with the news item published, it is the first accused who publishes the said newspaper. The accused no. 2 is a printing press where accused no. 1 gets his newspaper printed. Merely because of the fact that the newspaper is printed in the press, it cannot be said that the offence under Section 499, 500, 501, and 502 read with Section 35, IPC, as alleged in the complaint, would get attracted. Therefore, it was his argument that there are no materials to proceed against the second accused, and taking cognizance of the offence against the second accused is bad in law.

In the cause title of the private complaint, the second accused is described as Proprietor/Managing Director Digantha Mudrana, the name of the proprietor of the said press isn't mentioned. Without mentioning the name of the proprietor, the press can't be arraigned as an accused. He is also the Editor of the said newspaper. If the first accused gets the newspaper printed at Digantha Mudrana, it cannot be said that the second accused can be held responsible for the alleged defamatory news item printed in the said newspaper. No offence as against a second accused would constitute. 

Accordingly, the petition was partly allowed by the honorable court and the proceeding against the second accused i.e. Digantha Mudrana was quashed.

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Keshub Mahindra Vs. State of Madhya Pradesh (1996): This case is said to be the Bhopal Gas Leakage Tragedy of 1984 which resulted in thousands of deaths and decades of negative effect upon the encompassing habitants.

In that case, Keshub Mahindra (Deputy Chairman of UCIL) was charged under different sections of Indian legal code, as below :

1. That on the night intervening 2nd and 3rd December, 1984 at Bhopal, the offense of culpable homicide not amounting to murder was committed, by causing death of 3828 or more humans by allowing the highly toxic gas Methyl Iso-Cyanide to flee from UCIL, Bhopal, by several accused. And, even after knowing that it had been likely to cause deaths, Mr. Keshub sharing this public knowledge with other accused, did nothing to avoid the said escape of gas. Thus, he was charged under Sec. 304 read with Sec. 35 of the IPC for his culpable negligence.

2. That on the above date and at the above place, co-accused persons by allowing to flee from the tank the corrosive substance known by the name of Methyl Iso-Cyanide gas, knowing that it had been likely to cause grievous hurts, and thus voluntarily caused grievous hurts to 21694 or more citizenry and Mr. Keshub sharing this public knowledge with other accused did nothing to avoid the said escape of gas. Thus, he was charged under each count of an offence punishable under section. 326 read with Sec. 35 IPC.

3. That the opposite accused persons by allowing to flee from the above tank the corrosive substance known by the name of MIC gas knowing that it had been likely to cause hurts, thus voluntarily caused hurts to 8485 or more humans and Mr. Keshub sharing this public knowledge with other accused did nothing to avoid the said escape of gas. Thus, he was charged under section 324 read with Sec. 35 IPC.

It was contended on the behalf of Mr. Keshub that he was at Bombay during that mishappening and also as usual and wasn't concerned with the day-to-day working of the Plant at Bhopal. So, there was no question of framing charges against Keshub for the aforesaid offences read with S. 35 of the Indian penal code, as there was no evidence for even alleging accusations against Mr. Keshub that he had any criminal knowledge in reference to the mishap that occurred thereon fateful night at Bhopal. it had been also contended that the fees framed against the concerned accused should be quashed, because it lacks legality and reason.

On the opposite hand, it was submitted for the state that, there was ample material produced by the prosecution in support of the blotter which clearly indicated that each one the accused had shared common criminal knowledge about the potential danger regarding the escape of the poisonous gas M.I.C both on the account of defective plant, which was being operated under his supervision and also on account of the operational shortcomings detected by the Varadarajan Committee which was constituted by the govt. of India for inquiry purposes. Also, the report of the Scientific and Industrial Research team had clearly indicated the causes of this tragedy and therefore the defects found within the running of the Plant at the relevant time.