Section-149 of IPC provides for liability of the members of an unlawful assembly in furtherance of the common object of the members, or members of the assembly likely to know about the common object.
Whereas Section-34 of IPC requires active participation with common intention or prior meeting of minds.
Case in front of Honorable Supreme Court revolves around the liability of the 7 people accused of the offence under Section-307 of IPC (Attempt of the Murder), in which 3 members out of the 7 members of the unlawful assembly (5 or more than) were acquitted of the charges, so the application of Section-149 of IPC was not possible in this case.
Three-Judge Bench of Honorable Supreme Court comprising Justice N V Ramana, Surya Kant and Aniruddha Bose observed that Sections 211 and 244 of CrPC provides for flexibility of framing charges in criminal trials.
Court taking the precedent from Nallabothu Venkaiah .v. State of Andhra Pradesh (2002) case made the statement: charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w Section 34 if the criminal act was done by several persons less than five in numbers in furtherance of common intention is proved.
In this case, the court noted that Section-34 is well established in this case due to premeditation of the attack.
(Rohtas and Another .v. State of Haryana)