Section Overview
Section Number
38
Section Title
Persons Concerned in Criminal Act May Be Guilty of Different Offences
Act
Bharatiya Nyaya Sanhita, 2023 (BNS)
Status
Active
Applicability
Applicable throughout India wherever the Bharatiya Nyaya Sanhita, 2023 is in force.
BNS Section 38 is an important provision dealing with the principle of individual criminal liability. While several persons may participate in the same criminal act, their mental states, intentions, and knowledge may differ. As a result, the law permits courts to hold different participants guilty of different offences arising out of the same incident.
The section prevents blanket liability and ensures that punishment corresponds to the actual culpability of each accused person.
This provision substantially corresponds to Section 38 of the Indian Penal Code, 1860.
Section Explanation
Simple Explanation (Plain English / Hinglish)
BNS Section 38 ka matlab hai ki ek hi criminal act me shamil alag-alag log alag offences ke liye guilty ho sakte hain.
Har vyakti ki liability uske intention, knowledge aur role ke hisaab se decide ki jaati hai.
Example:
A aur B milkar C par attack karte hain.
-
A ka intention C ko maarne ka hai.
-
B ka intention sirf daraane ka hai.
Agar C ki death ho jaati hai, to A murder ke liye liable ho sakta hai, jabki B kisi kam gambhir offence ke liye liable ho sakta hai.
Yaani same incident me alag-alag offences ban sakte hain.
Legal Definition (Original Law Text)
The section provides in substance:
"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."
Practical Interpretation
The provision allows courts to:
-
Examine each accused separately.
-
Consider individual intention and knowledge.
-
Determine separate offences.
-
Award different punishments.
The section reflects the principle that criminal responsibility is personal and depends on the specific circumstances applicable to each participant.
Essential Ingredients of BNS Section 38
Several Persons Involved
More than one person must participate in the criminal act.
Common Criminal Transaction
The participants must be involved in the same act or occurrence.
Different Mental States
Participants may have different intentions or knowledge.
Different Criminal Liability
Each person may be convicted of a different offence.
Purpose of the Section
The primary objective is to ensure fairness.
Without this provision:
-
All participants might receive identical liability.
-
Individual circumstances could be ignored.
-
Justice might become disproportionate.
Section 38 allows courts to tailor liability according to actual culpability.
Difference Between Sections 34, 35 and 38
BNS Section 34
Deals with common intention and joint liability.
BNS Section 35
Deals with different intentions or knowledge among participants.
BNS Section 38
Allows participants in the same act to be convicted of different offences.
Thus, Section 38 emphasizes individualized criminal responsibility.
Punishment & Legal Classification
Punishment
BNS Section 38 does not prescribe any independent punishment.
Punishment depends upon the offence for which each accused is ultimately convicted.
Bailable / Non-Bailable
Depends upon the particular offence.
Cognizable / Non-Cognizable
Depends upon the particular offence.
Compoundable
Depends upon the particular offence.
Triable By
Depends upon the offence concerned.
Since Section 38 is a rule of criminal liability rather than a substantive offence, procedural classification varies according to the offence proved against each accused.
IPC ↔ BNS Mapping
IPC Section
Section 38 IPC
BNS Equivalent
Section 38 BNS
Status
Replaced with substantially identical provision.
The legal principle remains unchanged under the Bharatiya Nyaya Sanhita, 2023.
Judicial precedents interpreting IPC Section 38 continue to be relevant for understanding BNS Section 38.
Real-Life Examples
Example 1
A and B assault a victim.
-
A intends to kill.
-
B intends only to cause hurt.
If the victim dies, A may be guilty of murder while B may be guilty of causing grievous hurt or culpable homicide depending on circumstances.
Example 2
A group participates in a robbery.
One participant carries a firearm and intends serious violence while another merely acts as a lookout.
Different offences may apply to different participants.
Example 3
Several individuals engage in a financial fraud.
The mastermind knowingly plans the scheme while another employee unknowingly assists with paperwork.
Their criminal liability may differ significantly.
Additional Practical Examples
Cybercrime Cases
Different participants may perform different functions with different knowledge levels.
Corporate Fraud
Directors and employees may possess varying degrees of awareness.
Organized Crime
Participants may play distinct roles with different criminal intentions.
Public Disorder Cases
Some participants may commit serious offences while others commit minor offences.
Landmark Judgments
Case Name
Mahbub Shah v. Emperor
Court
Privy Council
Key Takeaway
Criminal liability depends upon individual participation and intention.
Case Name
Pandurang v. State of Hyderabad
Court
Supreme Court of India
Key Takeaway
Courts must carefully evaluate the role and mental state of each accused.
Case Name
Virendra Singh v. State of Madhya Pradesh
Court
Supreme Court of India
Key Takeaway
Different accused involved in the same occurrence may incur different criminal liability depending on evidence.
Legal Insights
When is this Section Applied?
Section 38 is commonly applied in:
-
Murder cases involving multiple accused.
-
Group assaults.
-
Robbery and dacoity cases.
-
Financial fraud investigations.
-
Cybercrime prosecutions.
-
Organized crime matters.
Common Misuse Scenarios
Assuming Equal Liability
Not every participant is necessarily guilty of the same offence.
Ignoring Individual Circumstances
Each accused must be evaluated independently.
Overlooking Mental State
Intention and knowledge remain crucial.
Presuming Common Intention Automatically
Common participation does not automatically establish common intention.
Defenses Available
Absence of Criminal Intent
The accused lacked the necessary mental element.
Lack of Knowledge
The accused was unaware of criminal circumstances.
Minimal Participation
The accused played a limited and non-criminal role.
Mistaken Identity
The accused was wrongly implicated.
Good Faith Conduct
The accused acted honestly and without criminal purpose.
Importance of BNS Section 38
Section 38 promotes individualized justice.
The provision ensures:
-
Fair assessment of each participant.
-
Proportionate punishment.
-
Recognition of differing intentions.
-
Accurate attribution of criminal responsibility.
The section prevents excessive punishment and supports the principle that liability should match culpability.
Modern Relevance
Modern criminal enterprises often involve multiple actors performing specialized tasks.
Examples include:
-
Cyber fraud networks.
-
Corporate scams.
-
Online financial crimes.
-
Identity theft operations.
-
Organized criminal groups.
Different participants may possess varying levels of knowledge and intent.
Section 38 allows courts to distinguish between masterminds, active offenders, and minor participants.
This flexibility is essential in modern criminal justice.