IPC Section 38 : Persons Concerned In A Criminal Act May Be Guilty Of Different Offences

In criminal law, it’s not uncommon for multiple people to be involved in a single act that leads to an offence. However, not everyone’s intention or knowledge is the same. One person may have planned the crime, while another was simply following instructions without understanding the full consequences. Recognising this legal nuance, IPC Section 38 clarifies that even if several people are involved in the same act, they can be held guilty of different offences, depending on their individual intent, knowledge, and role. This provision ensures fair attribution of liability and prevents blanket punishment when intentions differ, even in joint actions.

In this blog, you will explore:

• The legal definition and simplified explanation of IPC Section 38
• Examples showing how one criminal act can lead to different charges for different people
• Key elements that trigger Section 38
• Its relationship with IPC Sections 34, 35, 37, and 120B
• Importance in today’s context: mob violence, corporate negligence, riots
• Landmark case laws interpreting Section 38

What Is IPC Section 38?

Legal Definition:
"Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act."

IPC Section 38 addresses situations where multiple people are involved in the same criminal act, but each person’s role, intention, or awareness of the consequences differs. Unlike Sections 34 or 35, which focus on shared intention or knowledge leading to a common offence, Section 38 allows for individualised punishment. This means that even if a group acts together, one person might be guilty of murder, another of abetment, and another only of causing hurt—all based on their distinct mental states and actions.

Simplified Explanation

IPC Section 38 tells us that in a group crime, everyone may not be guilty of the same offence. If multiple people contribute to a single incident, each person’s state of mind (mens rea) and individual act (actus reus) will determine which specific offence they are charged with.

In simple terms, two people can be involved in the same incident, but one may be guilty of murder while the other is only guilty of assault, depending on their intention and knowledge.

Examples: How Section 38 Works

Example 1: Protest Turns Violent
During a protest, one person throws a stone, breaking a window (causing mischief), while another sets fire to a car (arson). Even though both were at the same event, their actions and intentions differed. Under IPC Section 38, they can be charged for different offences.

Example 2: Factory Negligence Case
In a factory accident, the plant manager ignored safety norms (culpable negligence), while the maintenance worker followed orders without questioning. The manager may be charged under IPC Section 304A (causing death by negligence), while the worker may not be held guilty at all or may face a lesser charge.

Key Elements Of IPC Section 38

To apply Section 38, the following conditions must be satisfied:

• Two or more persons are involved in a common act or incident
• Each person’s intention, knowledge, or role is different
• The act leads to different degrees of criminal liability
• The law distinguishes the offence for each person based on their mental and physical contribution

Connection With Other IPC Sections

IPC Section 38 is closely related to:

• Section 34 – Common intention
• Section 35 – Common knowledge or intent
• Section 37 – Cooperation in acts by multiple persons
• Section 120B – Criminal conspiracy

However, Section 38 is distinct because it emphasises differentiated liability, even when the act is shared.

Why Section 38 Matters In Today’s Legal Landscape

• Mob Lynching Cases: Not every person in a crowd may have the intention to kill. Section 38 helps courts assign fair responsibility.
• Corporate Scams: While a CEO may have fraudulent intent, a junior employee executing orders may lack criminal intent.
• Medical Negligence: In hospitals, if a death occurs, doctors, nurses, and admin staff may each face different charges depending on their role and intent.

Landmark Case Laws on IPC Section 38

The following landmark cases explain how IPC Section 38 is applied in real-world scenarios, helping differentiate liability among co-accused based on their specific conduct and mental state.

1. Pandurang v. State of Hyderabad (1955)

Facts:
Several individuals attacked a victim, resulting in his death. The issue before the court was whether all the attackers shared the same intention to kill, and thus, whether they should all be held liable for murder.

Held:
In the case of Pandurang v. State of Hyderabad (1955) Supreme Court held that while all the accused were present at the scene, only some had the intention to kill. Therefore, different individuals were convicted of different offences based on their roles—some for murder, others for lesser offences. This case clarified that under Section 38, each person’s liability depends on their specific intention and participation, not merely on their presence or association with the group.

2. Barendra Kumar Ghosh v. King Emperor (1925)

Facts:
Barendra Kumar Ghosh was part of a group that planned a robbery. During the robbery, one co-conspirator shot and killed a postmaster. Barendra argued he did not participate in the shooting and was only present at the scene.

Held:
In the case of Barendra Kumar Ghosh v. King Emperor (1923) Privy Council ruled that mere presence at the scene does not absolve someone of responsibility if they are part of a group with a shared criminal intent. Even though Barendra did not pull the trigger, he was held guilty because he shared the common intention. Section 38 was applied to hold him liable for the offence committed by the group.

3. State of Maharashtra v. Salman Salim Khan (2004)

Facts:
Bollywood actor Salman Khan was accused of running over individuals with his car while intoxicated. Others in the vehicle were charged with aiding and abetting the crime.

Held:
In the case of State of Maharashtra v. Salman Salim Khan (2004) court examined whether the other passengers shared a common intention to commit the act. The case highlighted that under Section 38, liability depends on the degree of participation and the specific intention of each accused. Only those who shared the intention or contributed to the act could be held liable for the same or different offences.

Conclusion

IPC Section 38 brings much-needed fairness to group crime prosecution. It recognises that people may act together but not always with the same purpose or knowledge. By allowing the court to assign different charges based on individual mental states and actions, this section ensures justice is personalised, not generalised. In a legal system where multiple actors are often involved in one offence—be it mob violence, corporate fraud, or accidental deaths—Section 38 plays a crucial role in upholding the principle of proportionate liability.