Introduction

Section 3(5) of the Bharatiya Nyaya Sanhita, 2023, directly replaces Section 34 of the Indian Penal Code, 1860. Both provisions deal with the doctrine of common intention and joint criminal liability. The new law does not change the substance of the principle. Instead, it continues the same legal position while reorganising the structure of the criminal code for modern application.

Under both provisions, when multiple persons commit a criminal act in furtherance of a shared intention, the law treats each person as if they committed the entire act alone. This rule ensures that offenders cannot escape liability by dividing roles or claiming limited involvement.

What Is the Exact Legal Text of Section 3(5) BNS and Section 34 IPC?

The language of Section 3(5) BNS is almost identical to Section 34 IPC. Both provisions state that when a criminal act is done by several persons in furtherance of the common intention of all, each person is liable for that act in the same manner as if the act were done by that person alone.

The Bharatiya Nyaya Sanhita retains the same wording with only minor grammatical adjustments. These changes do not alter interpretation, scope, or punishment. Courts can continue to rely on decades of judicial precedents developed under Section 34 IPC.

Why Is Common Intention Important in Criminal Law?

The concept of common intention prevents offenders from avoiding responsibility by acting collectively. Criminal acts often involve more than one person, with each individual playing a specific role. Without this principle, only the person who performed the final act would face punishment.

Common intention allows courts to fix liability on all participants who shared the criminal purpose. It reflects the idea that the law punishes the intention behind the act as much as the act itself. Section 3(5) BNS reinforces this collective responsibility while ensuring fairness through strict evidentiary standards.

Does Common Intention Require Prior Planning?

Common intention does not always require long-term planning. Courts have consistently held that a prior meeting of minds can develop even at the spot of the incident. What matters is the unity of purpose among the accused.

The intention must exist before or during the commission of the crime. It cannot arise after the act is complete. Even spontaneous decisions, if shared and acted upon jointly, can establish common intention under Section 3(5) BNS.

Is Mere Presence at the Crime Scene Enough to Attract Liability?

Mere presence at the scene of the crime does not automatically attract liability under Section 3(5) BNS. The prosecution must prove active participation or conduct that supports the common intention.

Participation does not always mean physical action. It may include guarding, instigating, facilitating, or preventing resistance. Courts examine conduct before, during, and after the incident to determine whether the accused shared the criminal intention.

How Do Courts Prove Common Intention?

Courts rarely find direct evidence of common intention. Instead, they infer it from surrounding circumstances. Factors such as motive, relationship between the accused, proximity to the crime, weapons used, and coordinated actions play a crucial role.

The burden of proof remains high. The prosecution must establish common intention beyond reasonable doubt. Any ambiguity benefits the accused. This safeguard prevents misuse of the provision and ensures that innocent bystanders are not punished.

What Is the Nature of Liability Under Section 3(5) BNS?

Section 3(5) BNS creates joint liability, not a separate offence. It acts as a rule of evidence that links individual liability to collective action. Once common intention is proved, each accused becomes fully responsible for the criminal act.

The punishment does not arise from Section 3(5) itself. It flows from the substantive offence committed, such as murder, robbery, or assault. This structure mirrors Section 34 IPC and maintains continuity in sentencing principles.

How Is Section 3(5) BNS Different From Common Object Provisions?

Common intention under Section 3(5) BNS differs from common object under Section 190 BNS, which corresponds to Section 149 IPC. Common intention requires proof of shared mens rea among all accused. Common object focuses on membership of an unlawful assembly and has a lower threshold of proof.

Courts apply stricter scrutiny to cases under Section 3(5) BNS. Each accused’s role and intent must be clearly established. This distinction remains unchanged under the new criminal code.

Has the Bharatiya Nyaya Sanhita Changed the Law on Common Intention?

The Bharatiya Nyaya Sanhita does not introduce any substantive change to the doctrine of common intention. It preserves existing judicial interpretations and safeguards developed under Section 34 IPC.

Recent decisions, including post-BNS judgments, reaffirm that passive presence is insufficient for conviction. Courts continue to emphasise individual assessment, proportionality, and fairness in applying joint liability.

Conclusion

Section 3(5) of the Bharatiya Nyaya Sanhita stands as a faithful successor to Section 34 of the Indian Penal Code. It retains the same language, intent, and judicial interpretation. The principle of common intention remains a cornerstone of Indian criminal jurisprudence, ensuring justice through collective responsibility without compromising individual rights.