What is IPC Section 35?
IPC Section 35 falls within Chapter II of the Indian Penal Code ("General Explanations"), specifically within a cluster of provisions (Sections 34-38) that address how criminal liability applies when multiple persons jointly participate in a criminal act. While Section 34 establishes the well-known doctrine of "common intention" — under which all participants are liable for the acts of any one participant, provided they shared a prior common intention to commit the crime — Section 35 addresses a distinct and narrower scenario.
Section 35 applies specifically to acts that are "criminal only by reason of" being done with a particular criminal knowledge or intention — meaning the underlying physical act itself might be entirely lawful or neutral, and it is only the presence of the specific mental state (knowledge or intention) that renders it criminal. In such cases, where several persons jointly do the act, the section provides that liability is assessed individually: each person who joins in the act with the requisite knowledge or intention is liable "in the same manner as if the act were done by him alone" with that mental state. This distinguishes Section 35 from Section 34, since there is no requirement here of a shared, common plan among the participants — each person's own state of mind is what matters, independent of the others.
Important Update: IPC to BNS Transition
With effect from 1 July 2024, the Indian Penal Code has been replaced by the Bharatiya Nyaya Sanhita (BNS), 2023 for offences committed on or after that date. Section 35 IPC now corresponds to Section 3(6) of the BNS, which has been incorporated as a sub-section of the BNS's consolidated general explanations provision (Section 3), retaining the identical principle and wording without substantive change.
Legal Provision — Text of Section 35 IPC
Section 35 must be read alongside Section 34 (acts done by several persons in furtherance of common intention), Section 36 (effect caused partly by act and partly by omission), Section 37 (co-operation by doing one of several acts constituting an offence), and Section 38 (persons concerned in a criminal act may be guilty of different offences).
Section 35 vs. Section 34: Key Distinctions
A frequent point of confusion in Indian criminal law is the relationship between Sections 34 and 35. Section 34 imposes liability on all participants for an act done by any one of them, provided there was a prior meeting of minds — a genuine "common intention" shared among the participants before or at the time of the act. This is a doctrine of constructive or vicarious liability: even a participant who did not physically perform the criminal act can be held liable for it, so long as the common intention is established.
Section 35, by contrast, applies to a narrower and conceptually distinct category — acts that are criminal solely because of the mental state involved (rather than being inherently unlawful acts like murder or theft, to which Section 34 typically applies). Here, the focus shifts away from a shared plan and onto each individual's personal knowledge or intention. There is no vicarious liability under Section 35 — a person is only liable for their own criminal state of mind, "as if" they alone had done the act with that knowledge or intention, independent of what other joint participants may have known or intended.
Key Elements of Section 35
The act must be criminal only by reason of the mental element
The underlying act must not be inherently criminal on its own — its criminality must depend specifically on being done with a particular criminal knowledge or intention.
The act must be done by several persons jointly
Multiple individuals must have participated in doing the act together.
Each person's individual knowledge or intention determines their liability
Liability attaches only to those participants who personally possessed the requisite criminal knowledge or intention — not to those who joined without such awareness or purpose.
Liability is assessed "as if" the person acted alone
Each culpable participant is treated as though they individually committed the entire act with the mental state they personally possessed, without regard to the states of mind of the other participants.
Illustration
Legal commentary on Section 35 offers illustrative scenarios of acts that become criminal specifically due to a mental element. For example, several persons may jointly participate in destroying or damaging property, but this only rises to the level of the offence of "mischief" (Section 425) for those participants who acted with the requisite intention or knowledge of causing wrongful loss or damage — a participant who joined without any such awareness would not be criminally liable for mischief, even though they physically took part in the underlying act, since their individual mental state did not meet the threshold required to render their conduct criminal.
Important / Landmark Cases on Section 35
Individualized Assessment of Mens Rea
Courts interpreting Section 35 have emphasized that, unlike the collective, constructive liability framework under Section 34, this section requires the prosecution to establish the specific criminal knowledge or intention possessed by each individual participant separately, before liability under the relevant substantive offence can attach to that person.
Application to Offences Dependent on Mental State
Courts have applied Section 35 to offences where the underlying conduct is neutral or lawful in itself, and criminality depends entirely on the specific mental element — such as certain forms of mischief, or acts that become criminal only when done with a dishonest or fraudulent intention — clarifying that each joint participant's liability must be separately established based on their own state of mind.