51. There is a substantial difference between these two sections with which we would deal in the later part of this judgment. When several persons, numbering five or more, do an act or intend to do it, both sections 34 and 149 IPC may apply. Section 149 IPC is of wider scope than section 34 IPC and in a case where section 149 applies, a constructive liability arises in respect of those persons who do not actually commit the offence.

DISTINCTION BETWEEN SECTION 34 AND SECTION 149 OF THE INDIAN PENAL CODE

(i) Section 34 does not by itself create any specific offence, whereas section 149 does so;

(ii) Some active participation, especially in crime involving physical violence, is necessary under section 34, but section 149 does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in preparation and commission of the crime;

(iii) Section 34 speaks of common intention, but section 149 contemplates common object which is undoubtedly wider in its scope and amplitude than intention; and

(iv) Section 34 does not fix a minimum number of persons who must share the common intention, whereas section 149 requires that there must be at least five persons who must have the same common object.