INDIAN PENAL CODE

Adv. Manu Krishna. S.K

Gold Medalist &Rank Holder

Ph-9995400709

TOPIC 1

INTRODUCTION

On the basis of the remedies sought and the procedure followed, all laws can be

grouped into two categories-civil laws and criminal laws. The Indian Penal Code contains

the law relating to crimes and their punishments. Crime is basically disobedience of penal

law. For example, a gambler disobeys the prohibition against gambling. He is liable to be

punished. The consequence of violation of law is sufferance of punishment by the offender.

The object of criminal law is penal retribution.

Crimes are not civil wrongs. In a civil wrong, the defendant is liable to pay

compensation to the plaintiff. This is because the object of civil law is to restore the

plaintiff to his/her original position by compensating him/her. The object of civil law is

restorative justice.

Moral wrongs are not punishable. Moral wrongs do not create a claim for

compensation. There is no liability for a person who commits a moral wrong. For example,

disobedience of parents is a moral wrong. The child is not liable for punishment or liable

for paying compensation to his/her parents for disobeying them.

TOPIC 2

DEFINITION CRIME

The expression ‘crime’ has not been defined in the Indian Penal Code. A crime is an

act or omission in respect of which a punishment may be inflicted on the person responsible

for the act or omission. A crime can be defined as any act or omission of duty that results in

harm to the society at large and which is punishable by the state. A crime, by definition,

harms society as a whole. For this reason crimes are generally prosecuted by the state, i.e. it

is not the role of the victim to prosecute the person(s) committing the crime.

Definition

It is difficult to attach an exact definition to the term crime. There are motoring

offences ranging from simple parking errors, to death by dangerous driving. Offences

against the person range from a slap to murder.

In Halsbury’s Laws of England, the crime is defined as “an unlawful act or default,

which is an offence against the public. Blackstone in his classical work, Commentaries on

the Laws of England, attempted to define crime as a public wrong. According to him

“crime is an act committed or omitted in violation of a public duty forbidding or

commanding it”. Blackstone identified the demerits of his first definition, so he modified it

and said, “a crime is a violation of the public rights and duties due to the whole community.

Later when Stephen got an opportunity to edit the work of Blackstone, Blackstone’s

commentaries, he made a modification to the definition. Thus from the definitions given by

Blackstone and Stephen, one can conclude that the crime is a breach of laws which injure

the community in general. But this concept has been criticized by Kenny as erroneous

because in his view all acts that are injurious to the community are not necessarily crime. A

Crime is an act or omission in respect of which legal punishment may be inflicted on the

person who is in default either by acting or omitting to act.

There are many different types of crimes, from crimes against persons to victimless crimes

and violent crimes to white collar crimes. With each type of crime also come different

sociological phenomena and demographic profiles.

Crimes Against Persons

Crimes against persons, also called personal crimes, include murder, aggravated assault,

rape, and robbery. Personal crimes are unevenly distributed in the United States, with

young, urban, poor, and racial minorities committing these crimes more than others.

Crimes Against Property

Property crimes involve theft of property without bodily harm, such as burglary, larceny,

auto theft, and arson. Like personal crimes, young, urban, poor, and racial minorities

generally commit these crimes more than others.

James Stephen

Crimes Against Morality

Crimes against morality are also called victimless crimes because there is not complainant,

or victim. Prostitution, illegal gambling, and illegal drug use are all examples of victimless

crimes.

White-Collar Crime

White-collar crimes are crimes that committed by people of high social status who commit

their crimes in the context of their occupation. This includes embezzling (stealing money

from one’s employer), insider trading, and tax evasion and other violations of income tax

laws.

White-collar crimes generally generate less concern in the public mind than other types of

crime, however in terms of total dollars, white-collar crimes are even more consequential

for society. Nonetheless, these crimes are generally the least investigated and least

prosecuted.

Organized Crime

Organized crime is crime committed by structured groups typically involving the

distribution of illegal goods and services to others. Many people think of the Mafia when

they think of organized crime, but the term can refer to any group that exercises control

over large illegal enterprises (such as the drug trade, illegal gambling, prostitution, weapons

smuggling, or money laundering).

A key sociological concept in the study or organized crime is that these industries are

organized along the same lines as legitimate businesses and take on a corporate form. There

are typically senior partners who control the business’ profits, workers who manage and

work for the business, and clients who buy the goods and services that the organization

provides.

PRINCIPLES OF CRIMINAL LIABILITY

Criminal liability is what unlocks the logical structure of the criminal law. Each

element of a crime that the prosecutor needs to prove (beyond a reasonable doubt)

involves a principle of criminal liability. There are some crimes that only involve a

subset of the principles of liability, but these are rare and are called "crimes of

criminal conduct." Burglary, for example, is such a crime because all need to prove

beyond a reasonable doubt is an actus reus concurring with a mens rea. On the other

hand, there are crimes that involve all the principles of liability, and these are called

"true crimes" that reflect "black letter law." Homicide, for example, is such a crime

because need to prove actus reus, mens rea, concurrence, causation, and harm. The

requirement that the prosecutor must prove each element of criminal liability beyond

a reasonable doubt is called the "corpus delicti rule."

Liability needs to be distinguished from the following concepts:

 culpability (purposely, knowingly, recklessly, negligently) - infers intent

 capacity (infancy, intoxication, insanity) - capacity defenses

 responsibility (volition, free will, competency) - presumptions

In general, liability is one of the most important concepts in law. From the above

list, it is closest to responsibility, but more strictly refers to the idea of "legal

responsibility" as in the notion from civil law where a person is "legally liable" if they

do not meet some "legal responsibility." Some good synonyms for it are answerability

or accountability. Liability is inherently a social concept, which implies not only some

harm is done to society, but there is some collective accountability involved. Of

course, pure collective accountability is called "vicarious liability" but modern

societies (and even Anglo-American common law) have moved away from collective or

community-based systems of responsibility to systems where governments get to

declare what is criminal or quasi-criminal.

There are five principles of liability in criminal law:

 Principle of Actus Reus

 Principle of Mens Rea

 Principle of Concurrence

 Principle of Causation

 Principle of Resulting Harm

THE PRINCIPLE OF ACTUS REUS

 involuntariness -- sleepwalking, hypnotic behavior, etc. are seen as examples of

acting upon forces beyond individual control, and are therefore not normally

included in the principle of actus reus. However, certain "voluntarily induced

involuntary acts" such as drowsy driving might arguably be included if the prior

voluntary act created the risk of a future involuntary act.

 manifest criminality -- caught red-handed, clear-cut case of actus reus proven

beyond a reasonable doubt

 possession -- the law recognizes various degrees of this. Actual possession means

physically on your person. Constructive possession means physically under your

control. Knowing possession means you know what you are possessing. Mere

possession means you don't know what you are possessing. Unwitting possession is

when something has been planted on you. The only punishable types of possession

are the ones that are conscious and knowable.

 procuring -- obtaining things with the intent of using them for criminal

purposes; e.g., precursor chemicals for making narcotics, "pimping" for a

prostitute, and procuring another to commit a crime ("accessory before the fact")

 status or condition -- sometimes a chronic condition qualifies as action, e.g., drug

addiction, alcoholism, on the assumption that first use is voluntary. Sometimes the

condition, e.g. chronic alcoholism, is treated as a disease which exculpates an

individual. Equal Protection and other constitutional issues may be triggered.

 thoughts -- sometimes, not often, the expression of angry thoughts, e.g., "I'll kill

you for that" is taken as expressing the resolution and will to commit a crime, but

in general, thoughts are not part of the principle of actus reus. Daydreaming and

fantasy are also not easily included in the principle of mens rea.

 words -- these are considered "verbal acts"; e.g. sexual harassment, solicitation,

terroristic threats, assault, inciting to riot.

Criminal liability is what unlocks the logical structure of the criminal law. Each

element of a crime that the prosecutor needs to prove (beyond a reasonable doubt)

involves a principle of criminal liability. There are some crimes that only involve a

subset of the principles of liability, but these are rare and are called "crimes of

criminal conduct." Burglary, for example, is such a crime because all you need to

prove beyond a reasonable doubt is an actus reus concurring with a mens rea. On the

other hand, there are crimes that involve all the principles of liability, and these are

called "true crimes" that reflect "black letter law." Homicide, for example, is such a

crime because you need to prove actus reus, mens rea, concurrence, causation, and

harm. The requirement that the prosecutor must prove each element of criminal

liability beyond a reasonable doubt is called the "corpus delicti rule."

Liability needs to be distinguished from the following concepts:

 culpability (purposely, knowingly, recklessly, negligently) - infers intent

 capacity (infancy, intoxication, insanity) - capacity defenses

 responsibility (volition, free will, competency) - presumptions

In general, liability is one of the most important concepts in law. From the above

list, it is closest to responsibility, but more strictly refers to the idea of "legal

responsibility" as in the notion from civil law where a person is "legally liable" if they

do not meet some "legal responsibility." Liability is inherently a social concept,

which implies not only some harm is done to society, but there is some collective

accountability involved. Of course, pure collective accountability is called "vicarious

liability" but modern societies (and even Anglo-American common law) have moved

away from collective or community-based systems of responsibility to systems where

governments get to declare what is criminal or quasi-criminal.

There are five principles of liability in criminal law:

 Principle of Actus Reus

 Principle of Mens Rea

 Principle of Concurrence

 Principle of Causation

 Principle of Resulting Harm

THE PRINCIPLE OF ACTUS REUS

 involuntariness -- sleepwalking, hypnotic behavior, etc. are seen as examples of

acting upon forces beyond individual control, and are therefore not normally

included in the principle of actus reus. However, certain "voluntarily induced

involuntary acts" such as drowsy driving might arguably be included if the prior

voluntary act created the risk of a future involuntary act.

 manifest criminality -- caught red-handed, clear-cut case of actus reus proven

beyond a reasonable doubt

 possession -- the law recognizes various degrees of this. Actual possession means

physically on your person. Constructive possession means physically under your

control. Knowing possession means you know what you are possessing. Mere

possession means you don't know what you are possessing. Unwitting possession is

when something has been planted on you. The only punishable types of possession

are the ones that are conscious and knowable.

 procuring -- obtaining things with the intent of using them for criminal

purposes; e.g., precursor chemicals for making narcotics, "pimping" for a

prostitute, and procuring another to commit a crime ("accessory before the fact")

 status or condition -- sometimes a chronic condition qualifies as action, e.g., drug

addiction, alcoholism, on the assumption that first use is voluntary. Sometimes the

condition, e.g. chronic alcoholism, is treated as a disease which exculpates an

individual. Most often, it's the punishment aspect of criminal law in these kinds of

cases that triggers an 8th Amendment issue. Equal Protection and other

constitutional issues may be triggered.

 thoughts -- sometimes, not often, the expression of angry thoughts, e.g., "I'll kill

you for that" is taken as expressing the resolution and will to commit a crime, but

in general, thoughts are not part of the principle of actus reus. Daydreaming and

fantasy are also not easily included in the principle of mens rea.

 words -- these are considered "verbal acts"; e.g. sexual harassment, solicitation,

terroristic threats, assault, inciting to riot.

 Elements of Crime

 With the exception of strict liability offences, for a criminal offence to have occurred,

the accused must have committed both elements of the crime:

o Actus reus: refers to the actions (or in rare cases the failure to act/the omission)

of the accused; that is that the accused actually did the act {Physical element}.

o Mens rea: refers to the mental state of the accused; i.e. that the accused

intended the actions. {Mental element}

To constitute a crime, two elements are necessary and they are:

A. or Actus Reus.

B. Mental element or Mens Rea.

The fundamental principle of penal liability is based on the Latin maxim “Actus non

facit reum nisi mens sit rea” It means that an act does not become a crime unless done with

a guilty mind. So, the guilty mind and the act must concur to constitute a crime. Both the

Actus Reus and Mens Rea are essential to constitute a crime.

Actus Reus

The term ‘Actus’ means a deed, a physical result or conduct. It is defined as “such

result of human conduct as the law seeks to prevent”. For e.g. in the case of a murder, the

conduct of murderer is brought out by the victim’s death. Here, the conduct is ‘Actus reus’.

The conduct of the offender is experienced in 3 ways:

i. A certain wilful movement or omission.

ii. Certain surrounding circumstances including past acts.

iii. Certain consequents.

Act is a conscious movement. It results from the operation of will. The will may be by

thinking and working out by mind. It may also be expressed by way of working out of a

problem on a paper. The former is called Internal Act and the later is called External Act.

Elements of Act

a. Origin b. Circumstances c. Consequences.

Origin

If a person commits an act, he has to think of it and do some physical bodily activity.

For example if A wants to kill B, A must think of it and then raise his hand, apply his

fingers on the trigger and pull it.

Circumstances

In the above example, circumstances are the following:

1. The rifle must be already loaded.

2. B must be in the line of trigger point.

Consequences

Consequences are the outcome (result) of the origin or circumstances. In the

above example, the fall of the trigger and the explosion of the bullet constitute the

consequences of the act.

It is not the origin that completes the act as illegal, but it is only the circumstances and

consequences which make the act illegal or an offence.

Characteristics of Act

a) An act is an event subject to the control of will power. For e.g., ‘A’ falling from a tower

or building is an event where as ‘A’ jumping from a tower or building is an act.

b) An act may include omission also. For eg, a parent can be held liable for the murder of

his child by starvation.

c) A man is liable only for such acts, the consequences of which are foreseen by him.

d) If there are subsisting and intervening causes, the act is not punishable. For eg. if a man

shoot a girl, but if she dies from fever, then the accused is not guilty of murder, because the

death is not due to the act of shooting.

e) Under certain circumstances, even without physical participation, a man’s act is

punishable. For e.g. a man in Delhi can be held liable for arranging the commission of a

crime at Madras. Thus, acts like Abetment and Conspiracy are punishable even though

there is no physical participation in the commission of crime.

Mens Rea

A prohibited act will become a crime when it is accompanied by a certain state

of mind. There must be a mind at fault before any crime can be committed. An act or

omission alone is not sufficient to constitute a crime. The act or omission should have

followed by an evil intent.

The combination of an act with the intent makes a crime. An act by itself is not

a wrong. An act done with guilty mind makes it a crime if the act is prohibited by law.

Mens rea is an evil intention or knowledge of the wrongfulness of the act. Mens rea may

be of different kinds:

(1) Intention

Intention indicates the state of mind of a man who, not only foresees, but also

desires the possible consequence of his conduct.

Illustration

X throws a stone at Y with a desire to cause injury to Y. As a result of that

injury is caused to Y. The desire of X to cause injury to Y is intention or mens rea and the

act of throwing the stone and the consequential injury is the actus reus.

(2) Recklessness

When a person does an act with foresight of injury but without desire to cause harm to

any person the state of mind can be called "recklessness".

Illustration

X drives a vehicle at high speed through a busy street without any desire to commit

injury to any person. He foresees the possibility of accident but consciously takes the risk

that may result from such a driving. The accident may or my not happen. The state of

mind of X at the time of driving is recklessness. It is a mind at fault with mensrea for

constituting a crime.

(3) Negligence

Negligence means want of care. When a person who is bound to take care fails to take

care of an ordinary prudent man his mind is at fault and the faulty state of mind is known as

"negligence”. Recklessness includes negligent conduct.

(4) Knowledge

Knowledge refers to the personal information of a person doing an act. It is a state of

mind of a person. Under law doing of an act with knowledge may constitute a crime.

Illustration

X receives stolen property from Y with knowledge that it is stolen property. The act

of X is an offence punishable under law.

(5) Motive

Motive is an attitude of the mind. It is the emotion prompting the act. Love,

compassion, fear, jealousy, hatred, perverted lust, desire for money etc. are examples of

emotion prompting us the act and they constitute motive.

Motive refers to the ultimate intent. X is a starving man. He decides to commit theft

of bread to satisfy his hunger and he commits theft of bread from B's shop. The immediate

intention of his act is theft of bread and the motive is to satisfy his hunger. Thus, motive is

the ulterior object of an act which prompted him to do an act. Purity of motive or good

motive will not convert an act which otherwise criminal into one which is not punishable.

Exceptions to the element of Mens Rea

Strict liability offences

 Strict liability offences are minor in nature, e.g. speeding. For these offences it is not

necessary for the prosecution to prove mens rea; proof of the act alone is sufficient to

constitute a crime.

 Strict liability offences can only be successfully defended if the accused can prove

that the actual act did not occur as mens rea is irrelevant to this category of offences.

Mens Rea in Statutory Offences

There are certain enactments which defines offences without mentioning the necessity

of mens rea. In those statutes offences are defined in absolute terms. The Opium Act,

1878, The Foreign Exchange Act, 1947, The Prevention Food Adulteration Act, 1954, The

Narcotic Drugs and Psychotropic Substance Act, 1985, etc, are examples of such

enactments.

In olden days it was a common belief that legislature was not competent to over-ride

the established rules of common law. According to this view, even if the necessity of mens

rea is not expressly mentioned in a particular statute, the judges should read between lines

the necessary mens rea. In other words the necessity of mens rea should be taken as

granted. Thus even if the offences are defined without mentioning the necessity of mens

rea, the courts used to acquit the accused in the absence of guilty mind. But the present

view is that when the legislature defines an offence in absolute terms the courts cannot read

in between lines the necessary mens rea.

In State of Maharashtra v. M.H. George

, this case the accused was a passenger in a

Swiss Plane from Zurich to Manila. When the plain landed at the Bombay Airport, 34 Kg

of gold was recovered from him. He pleaded that he brought gold in to India for mere

transit to Manila. Supreme Court convicted him on the ground that violation of law itself is

sufficient for criminal liability even without mens rea.

In Inder Singh v. State of Punjab

, the appellant received a parcel containing fruits.

While he was carrying the parcel from the railway station the Police arrested him. The

parcel was found to contain Opium along with fruits. The mere possession of Opium is

punishable under the Opium Act, 1878. The accused was punished for possession of Opium

though he had no knowledge of the existence of Opium in the parcel.

Thus the classical view that ‘no mens rea, no crime' has been avoided by several

statutes enacted by the legislatures in India and by such laws severe punishments have been

prescribed for mere actus reus. Thus the statutory offences constitute an exception to

doctrine of mens rea.

AIR 1965 SC 722.

1972 (2) SCC 372.

CRIMINAL DEFENSES

Defendants of a crime must refute one or more elements of the crime of which they

have been accused by:

Arguing they were falsely accused and that the real culprit has yet to be identified.

May claim that although they engaged in the criminal act of which they are accused,

they lacked the intent needed to be found guilty of the crime.

Excuses - excuse criminal actions by claiming he or she lacked the capacity to form

sufficient intent to be held criminally responsible (insanity, intoxication, and ignorance)

Another type of defense is justification – the individual admits committing the

criminal act but maintains that the act was justified and that he or she should therefore not

be held criminally liable. (justified under the circumstances – necessity, duress, self-

defense, and entrapment)

Ignorance or Mistake – ignorance of the law is no excuse; ignorance does not excuse

evil intent; can be an excuse when there was no intent to violate the law and unknowingly

did so (buying goods you did not know were stolen) or if the mistake is reasonable (some

statutory rape)

Insanity – a defense to criminal prosecution in which the defendant’s state of mind

negates his or her criminal responsibility

Insanity is a legal category in which psychiatric testimony is to prove a defendant

legally sane.

A person found to be legally insane at the time of trial is placed in the custody of state

mental health authorities until diagnosed as sane.

U.S. courts usually use the M’Naghten Rule or the substantial capacity test

M’Naghten Rule is known as the right-wrong test; didn’t know what he was doing or

didn’t know it was wrong.

M’Naghten criticized due to confusion of terms “disease of the mind” and “ know the

nature and quality of the act” having never been properly clarified; mental health

professionals have pointed out that rule is unrealistic and narrow in that it does not cover

situations in which people know right from wrong but cannot control their actions.

Irresistible impulse test – could not control his conduct at the time of the crime; if jury

finds a person acted under an irresistible impulse, the defendant would be placed in a

mental health facility until considered capable of controlling his or her behavior.

Substantial capacity test is essentially a combination of M’Naghten and Irresistible

impulse requiring only a lack of substantial capacity to appreciate the wrongfulness of the

conduct or to control it, which must be proven by the prosecution beyond a reasonable

doubt

Intoxication – which in legal terms is defined as the taking of alcohol or drugs, is not

generally considered a defense

Duress – defense to a crime when the defendant commits an illegal act because the

defendant, or a third person, has been threatened by another with death or serious bodily

harm if the act is not performed.

Necessity- as a defense is applied in situations in which a person must break the law

to avoid a greater evil caused by natural forces (storms, earthquakes, or illness) This

defense is available only when committing the crime is the lesser of two evils.

Self-Defense – involves a claim that the defendant’s actions were a justified response

to the victim’s provocative behavior.

Self-defense can be used to protect one’s person or property.

An individual is justified in using force against another to protect himself or herself.

Defendants must reasonably believe that they are in danger of death or great harm and

that it is necessary for them to use force to protect themselves.

The amount of force used must be no greater than that necessary to prevent personal

harm.

Entrapment – another defense that excuses a defendant from criminal liability.

Defendant maintains that law enforcement officers induced him or her to commit a

crime that the defendant would not have committed had it not been for trickery, persuasion,

or fraud on the officers’ part

Law enforcement officers plan a crime, implant the criminal idea in a person’s mind,

and pressure that person into doing the act is different than an officer providing an

opportunity for the crime to be committed and the defendant being willing and ready to do

the act

Exotic Defences – based on pre-existing conditions or syndromes with which their

clients were afflicted

Vicarious Liability in Crimes

Vicarious liability is a principle by which one person is held liable for another's

wrong. In the case of crime only the person who actually commits the crime is normally

responsible. There are certain exceptions to the general rule that in case of crime only the

person who committed the crime is liable. The following are the exceptions:

(i) Section 154 of IPC provides that if unlawful assembly or riot takes place on the

land of person, the owner or occupier of such land is liable to be punished with fine not

exceeding one thousand rupees if he or his agent or manager fails to give the earliest notice

of an unlawful assembly or riot to the principal officer at the nearest police-station.

In R. v. Prayag Singh

, a riot took place on the land of one Prayag Singh during the

course of which one Pir Khan was killed. Prayag Singh was punished with fine of Rs.

1000/-.

(ii) According Section 155 of the I.P.C. whenever a riot is committed for the benefit of

the owner or occupier of any land who claims any interest in such land, if such person has

reason to believe that such riot was likely to be committed, the owner or occupier is liable

for fine if he has not taken all lawful means to prevent such riot.

(iii) Section 34 deals with joint liability or vicarious liability on the basis of "common

intention". By virtue of Section 34 of the Indian Penal Code, "when a criminal act is done

1890 (12) All 550.

by several persons in furtherance of the common intention of all each of such persons is

liable for that act in the same manner as if it were done by him alone".

In Hari Ram v. State of UP

, it was held that in order to establish the charge of

common intention, the prosecution has to establish by evidence, whether direct or

circumstantial, that there was plan or meeting of minds of the all accused persons to

commit the offence.

In State of U.P v. Kishan Chand and Others

, it was held that common object of the

unlawful assembly can be gathered from the nature of the assembly, arms used by them and

the behaviour of the assembly at or before the scene of occurrence. It is an inference to be

deduced from the facts and circumstances of each case.

(iv) Section 120A and 120B deal with joint liability of a member of a conspiracy to

commit an offence.

(v) Section 149 deals with joint liability or vicarious liability of members of an unlawful

assembly when an offence is committed by a member in prosecution of the common object

of the unlawful assembly.

(vi) Section 396 deals with joint liability or vicarious liability of dacoits when a dacoit

commits murder for committing dacoity.

(vii) Section 460 deals with joint liability of persons concerned in lurking-house trespass or

house breaking by night when death or grievous hurt is caused by one of them.

In Koppula Venkat Rao v. State of A.P

, it was held that an attempt consists in it the

intent to commit a crime, falling short of, its actual commission or

consummation/completion. It may consequently be defined as that which if not prevented

would have resulted in the full consummation of the act attempted.

Parties to a crime

Including principal in the first degree, principal in the second degree, accessory

before the fact, accessory after the fact

2004 (8) SCC 146.

2004 (7) SCC 629.

2004 (2) KLT SN 19.

Crimes are often complex events with a range of criminal activity, undertaken by a number

of different people associated with the event. All the people involved in a crime are referred

to as parties to the crime. All parties can be convicted and be punished by the court. Their

punishment will depend in part on the extent to which they were involved in the crime. The

more involved the greater the punishment. There are four types of parties to a crime; these

are:

1. Principal in the first degree: the person(s) directly responsible for the criminal act, e.g.

robbed the bank.

2. Principal in the second degree: the person, who assists the offender in the first degree

to commit the crime, e.g. drove the getaway car.

3. Accessory before the fact: the person(s) who helped to plan the crime e.g. stole the

bank plans.

4. Accessory after the fact: the person(s) who knowingly assists the offender after the

crime has been committed, e.g. helped hide the offender from police.

TOPIC 3

TERRITORIAL JURISDICTION AND EXTRA TERRITORIAL JURISDICTION

According to Sec. 2 of the I.P.C. every person is made liable to punishment without

distinction of nation, rank or creed. So all persons, whether rich or poor, high or low in

society, are punishable.

Territorial Jurisdiction

According to Sec.1 of the I.P.C. the territorial jurisdiction extends all over India,

expect the state of Jammu and Kashmir. So every person who is within Indian Territory is

punishable, whether he is an Indian or a foreigner. The citizenship or nationality of the

person is immaterial.

Exemptions

The following persons are exempted from jurisdiction:

i. The President of India or the Governor of a state.

ii. The Chief Justice and other Judges of the Supreme Court and the High Courts.

iii. Foreign Sovereigns and Ambassadors.

iv. Warships of Foreign States.

v. Alien Enemies.

vi. Former Rulers of the States.

i. The President or the Governor

The immunity given to them is based on the principle,“The King can do no wrong”.

The legal basis is that the Head of state is immune from punishment because no court can

have jurisdiction over him as he himself is the superior trial authority.

ii. Judges of Supreme Court and High Court

They enjoy immunity from criminal trials before the ordinary criminal courts in order

to safeguard the independence of the judiciary. However, this immunity is a qualified one

and their liability can be tried and determined by a special procedure.

iii. Foreign Sovereigns and Ambassadors

Foreign sovereigns, the Ambassadors and Diplomatic agents with their families,

secretaries, messengers and servants enjoy immunity.

iv. Warships of Foreign States

Warships of foreign states are exempted from the jurisdiction of the state within

whose territorial waters they are.

v. Alien Enemies

In respect of acts of war, alien enemies cannot be tried by the local criminal courts.

vi. Former Rulers of the States

They were exempted from the jurisdiction by the old Criminal Procedure Code of

1898. But those privileges have been abrogated in 1971 by The Abolition of Privy Purses

and Privileges Act.

Maritime Territory

For the purpose of jurisdiction, the land, internal waters such as rivers, lakes, and

canals are included. The sea was not under the territorial jurisdiction. But now, by enacting

the “Territorial waters Jurisdiction Act” the jurisdiction of I.P.C. extends to 12 nautical

miles into the sea.

R v. Keyn (Franconia case)

The German ship Franconia, while passing within three miles of the shore of England,

ran into a British ship and caused the death of a passenger, which amounted to the offence

of manslaughter. Mr. Keyn, the captain of the ship was tried for the offence of mans

laughter. As a statutory enactment was absent, the English criminal court had no power to

try such an offence. Hence the English parliament enacted the “Territorial waters

Jurisdiction Act of 1878” which extended the jurisdiction of English Courts to three miles

into sea from the shore.

Similarly, the air space excluding outer space above a country is subjects to its control

and country can prohibit the disturbance of the air space by wireless communication from

foreign stations.

Extra Territorial Jurisdiction

Sec.3 and 4 says that if an offence is committed outside India, the offender can be

punished in two ways:

1. If he is a citizen of India, and commits an offence outside India, (but this offence must

be punishable under the I.P.C.)

2. If an offence is committed in any ship or aircraft registered in India, wherever it may

be.

The word ‘offence’ means every act, which is punishable under Indian Penal Code,

though committed outside India. Thus Sec.3 and 4 extend the jurisdiction of Indian Courts

beyond the territorial limits of India. This is called Extra Territorial Jurisdiction of the

I.P.C.

Illustration

A, who is a citizen of India commits a murder in Uganda. He can be tried and

convicted for murder in any place in India in which he may found.

Extra territorial jurisdiction may be exercised by Indian Courts for offences

committed beyond the territories of India either in land or high seas.

The term ‘citizen of India’ means every person who has his domicile in the territory of

India and who is born in the territory of India, or either of whose parents was born in the

territory of India or who has been ordinarily resident in the territory of India for not less

than five years immediately preceding the commencement of the Indian constitution. The

accused must be a citizen of India at the time of committing the offence and not an

individual who has become a citizen subsequently.

Admiralty Jurisdiction

The jurisdiction to try offences committed on high seas is known as Admiralty

Jurisdiction. High seas are considered to be no man’s territory. The jurisdiction of a country

over its ships on the high seas is based on the principle that ship is a floating island

belonging to the nation whose flag she is flying.

The Admiralty jurisdiction extends:

1. Over offences committed on Indian ships;

2. Over offences committed on foreign ships in Indian territorial waters; and

3. Over pirates.

TOPIC 4

GENERAL EXPLANATIONS

Chapter 2 of I.P.C. contains the definition of various terms in the Code.

Following are some of those definitions and explanations:

Definitions in the Code to be understood subject to exceptions

S. 6 provides that throughout this Code every definition of an offence, every

penal provision, and every illustration of every such definition or penal provision

shall be understood subject to the exceptions contained in the Chapter entitled

“General Exceptions”, though those exceptions are not repeated in such definition,

penal provision, or illustration.

Illustrations

(a) The sections, in this Code, which contain definitions of offences, do not express that

a child under seven years of age can not commit such offences; but the definitions

are to be understood subject to the general exception which provides that nothing

shall be an offence which is done by a child under seven years of age.

(b) A, a police officer, without warrant, apprehends Z, who has committed murder. Here

A is not guilty of the offence of wrongful confinement for he was bound by law to

apprehend Z and therefore the case falls within the general exception which provides

that “nothing is an offence which is done by a person who is bound by law to do it”.

Sense of expression once explained

S. 7 states that every expression, which is explained in any part of this Code, is

used in every part of this Code in conformity with the explanation.

Gender

According to S. 8 the pronoun “he” and its derivatives are used of any person,

whether male or female.

Number

S. 9 provides that unless the contrary appears from the context, words

importing the singular number include the plural number, and words importing

the plural number include the singular number.

“Servant of Government”

By virtue of S. 14 the words “servant of Government” denote any officer or

servant continued, appointed or employed in India by or under the authority of

Government.]

“Judge”

S. 19 states that the word “Judge” denotes not only every person who is

officially designated as a judge, but also every person.

Who is empowered by law to give, in any legal proceeding, civil or criminal, a

definitive judgment, or a judgment which, if not appealed against, would be

definitive, or a judgment which, is confirmed by some other authority, would be

definitive, or

Who is one of a body of persons, which body of persons is empowered by law to give such

a judgment.

Illustrations

(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a judge.

(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to

sentence to fine or imprisonment, with or without appeal, is a judge.

Subs. by the A.O. 1950, for the original section.

Madras Code, to try and determine suits, is a judge.

(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power

only to commit for trial to another Court, is not a judge.

“Court of Justice”

S. 20 provides that the words “Court of Justice” denote a judge who is

empowered by law to act judicially alone, or a body of judges, which is empowered

by law to act judicially as a body, when such judge or body of judges is acting

judicially.

Illustration

A panchayat acting under [ Regulation VII, 1816, of the Madras Code, having power to try

and determine suits, is a Court of Justice.

TOPIC 5

PUBLIC SERVANT

Rep. by the Madras Civil Courts Act, 1873 (3 of 1873).

The term public servant is contained in Section 21 of the Indian Penal Code. Actually

the term is not defined in the Code. It gives a list of 10 categories of persons who are

considered as public servants. First of all the public servant must be a servant. Public

Servants are specially protected by the Indian Penal Code. At the same time if they deviate

from their powers they are seriously dealt with. The servant who is performing public duty

is generally called a public servant. They are called statutory public servants.

The following are the public servants according to Section 21of the Code.

1) Commissioned officers in Military, Naval or Air force.

2) Every Judge: Judge is a person or a body of persons, who is empowered by law to

give a final judgment.

3) Officers of a Court of Justice: Officers of a Court of Justice means a judge or body of

judges who is empowered by law to act judicially, officer is a person who is employed to

exercise a delegated function of government. Liquidators receivers and Commissioners

appointed by a court are also included under this category.

4) Arbitrator: Arbitrator is a person to whom a controversial matter has been referred for

decision or report. Arbitrators appointed by the parties do not come under this definition.

5) Persons empowered to place or keep any person in confinement are included under

this category.

6) Peace Officer: Person whose duty is to prevent offences, to give information of

offences, to bring offenders to justice or to protect the public health, satisfy or convenience

comes under this category.

7) Miscellaneous Officers of Government: Any person appointed to some office for the

performance of some public duty is called miscellaneous officer. He must be an officer and

also he should be in the pay or service of Government.

8) Officers of Local Bodies: Every member including the chairman of Municipal Board,

Municipal Engineers, etc., will come under this category.

9) Persons Connected with Elections: Every person who is connected with elections, a

clerk who prepares electoral roles etc. are public servants.

10) Persons in the service or pay of the Government or local authority or corporation or

Government Companies.

In Mohammed Kutty v. State of Kerala

, it was held that a person, who is going from

his house to the place where he has to attend to public duties, cannot be said to be on duty.

He can be said to be in execution of public duty only when he reaches the place where he

has to perform his duties and he engages himself in discharge of his public duty.

“Moveable property”

According to S. 21 the words “moveable property” are intended to include corporeal

property of every description, except land and things attached to the earth or permanently

fastened to anything, which is attached to the earth.

Wrongful Loss and Wrongful Gain

Sec. 23 defines the words ‘Wrongful loss’ and ‘Wrongful gain’. It is curious to find

that the word “Wrongful” is not defined anywhere in the Code. But the word is indicative

of some act which is contrary to the dictates of law and which adversely affects some

person. Both in wrongful gain and loss some property should be involved. This is clear

from the Section which reads “Wrongful gain” as gain by “unlawful means of property to

which the person gaining is not legally entitled.” Wrongful Loss” is loss by unlawful means

of property to which the person losing is legally entitled. In order to constitute wrongful

loss the property should have been kept out of it, by unlawful methods adopted by the

accused.

In Mahalingayya v. Maddayya Pujari

, a postman instead of delivering a V.P. parcel

to the addressee signed on behalf of the addressee and did not return the parcel to the post

office, intending to make it appear that the parcel was delivered to the addressee and

retained the parcel with him. It was held that it resulted in wrongful loss to the addressee

and wrongful gain to the postman.

2004 (1) KLT 331.

1959 CrLJ 881 .

If a creditor takes away illegally and forcefully the property of his debtor in

satisfaction of the debt, it amounts to wrongful gain. The proper method for the creditor is

to file a civil suit against the debtor. So the forceful taking of the property is taking by

“unlawful means” as contemplated in the section dealing with wrongful gain.

TOPIC 6

JOINT LIABILITY

GROUP LIABILITY [joint liability] Constructive Liability

A crime may be committed by an individual or in collaboration with others. In

case an individual commits a crime, there would be no difficultly in assessing his

criminal guilt. The difficulty arises when several persons are engaged in the

commission of an offence and different roles are played by each of such individuals. In

such cases, a distinction is drawn between the acts of each of such individuals

according to their mode and degree of participation or involvement in the commission

of the offence for ascertaining guilt and awarding punishment. Such person may

broadly be classified into principals and abettors.

A principal is a person who either actually commits a crime or aids in the

commission of a crime while being present at the place of occurrence. Such a person is

held liable as the actual offender under the specific sections or under the provisions

governing joint and constructive liability.

An abettor is a person who directly or indirectly aids, assists, counsels procures

or encourages another to commit a crime.

An abettor renders assistance and aid from behind the scene of the crime where

as the principal remains present in person through out the commission of the act.

If an offence is committed by a single person there is no difficulty to find the liability. If an

offence is committed by a number of persons it will be very difficult to find out the actual

offender. In such a case the liability will be on all of them. It is based on the common sense

principle that if an act is done by several persons all are equally responsible for the act.

“Dishonestly”

According to S. 24 whoever does anything with the intention of causing wrongful gain

to one person or wrongful loss to another person, is said to do that thing “dishonestly”.

“Fraudulently”

By virtue of S. 25 a person is said to do a thing fraudulently if he does that

thing with intent to defraud but not otherwise.

“Reason to believe”

S. 26 provides that a person is said to have “reason to believe” a thing, if he has

sufficient cause to believe that thing but not otherwise.

Property in possession of wife, clerk or servant

According to S. 27 when property is in the possession of a person’s wife, clerk

or servant, on account of that person, it is in that person’s possession within the

meaning of this Code.

Explanation to S. 27 states that a person employed temporarily or on a particular occasion

in the capacity of a clerk or servant, is a clerk or servant within the meaning of this section.

“Counterfeit”

S. 28 provides that a person is said to “counterfeit” who causes one thing to

resemble another thing, intending by means of that resemblance to practice deception, or

knowing it to be likely that deception will thereby be practiced.

Explanation I to S. 27 states that it is not essential to counterfeiting that the imitation

should be exact.

Explanation II to S. 27 states that when a person causes one thing to resemble another

thing, and the resemblance is such that a person might be deceived thereby, it shall be

presumed, until the contrary is proved, that the person so causing the one thing to resemble

the other thing intended by means of that resemblance to practice deception or knew it to be

likely that deception would thereby be practiced.]

“Document”

S. 29 provides that a the word “document” denotes any matter expressed or

described upon any substance by means of letters, figures, or marks, or by more than

one of those means, intended to be used, or which may be used, as evidence of that

matter.

Explanation I to S. 29 states that it is immaterial by what means or upon what substance

the letters, figures or marks are formed, or whether the evidence is intended for, or may be

used in, a Court of Justice, or no.

Illustrations

A writing expressing the terms of a contract, which may be used as evidence of the

contract, is a document.

A cheque upon a banker is a document.

Subs. by Act 1 of 1889, s. 9, for the original Explanation.

A power of attorney is a document.

A man or plan which is intended to be used or which may be used as evidence, is a

document.

Explanation II to S. 29 states that whatever is expressed by means of letters, figures or

marks as explained by mercantile or other usage, shall be deemed to be expressed by such

letters, figures or marks within the meaning of this section, although the same may not be

actually expressed.

Illustration

A writes his name on the back of a bill of exchange payable to his order. The meaning of

the endorsement, as explained by mercantile usage, is that the bill is to be paid to the

holder. The endorsement is a document, and must be construed in the same manner as if the

words “pay to the holder” or words to that effect had been written over the signature.

“Valuable security”

According to S. 30 the words “valuable security” denote a document which is, or

purports to be, a document whereby any legal right is created, extended, transferred,

restricted, extinguished or released, or whereby any person acknowledges that the lies

under legal liability, or has not a certain legal right.

Illustration

A writes his name on the back of a bill of exchange. As the effect of this endorsement is

transfer the right to the bill to any person who may become the lawful holder of it, the

endorsement is a “valuable security”.

“A will”

By virtue of S. 31 the words “a will” denote any testamentary document.

“Words referring to acts include illegal omissions

S. 32 provides that in every part of this Code, except where a contrary intention

appears from the context, words which refer to acts done extend also to illegal

omissions.

“Act”. “Omission”

S. 33 states that the word “act” denotes as well a series of acts as a single act: the

word “omission” denotes as well as series of omissions as a single omission.

Section 34 provides this principle. The Section says that if an offence is committed

by two or more persons in furtherance of common intention of all, each of such persons

shall be held liable as if the act was done by him alone. That means constructive liability

will arise in such a case. Section 34 does not create a specific offence. But it is only a rule

of evidence.

The essential Ingredients of Section 34 are:

1) There must be two or more persons;

2) They must have a common intention;

3) The criminal act must be done in furtherance of the common intention; and

4) Participation in action by all the accused.

The number of offenders must be minimum two. Active Participation of the

offenders is not necessary. It means that it is not necessary that each one should commit the

offence.

In Surendra Chauhan v State of M.P,

, it was held that the common intention can

develop even during the course of an occurrence. In every case, it is not possible to have

direct evidence of a common intention. It has to be inferred from the facts and

circumstances of each case.

Common Intention

Intention means the desire of doing an act. Common intention is a prior meeting of

minds or a prior concert or a pre-arranged plan. If the intention of a person is made known

to another and if both of them together commit an offence then that intention can be called

as common intention. In other words when the intention to commit an offence is shared

among the offenders that intention will become the common intention. It is not the same

intention or similar intention. If several persons attacking a person simultaneously. They

may have the same intention to kill him each one can be convicted for this act. This same

intention when it is shared by all the accused that will become common intention. It is the

duty of the prosecution to prove the common intention. The common intention can be

inferred from the conduct of the accused persons, from the nature of attack, and the injuries

inflicted and also from the weapons used.

In State of U. P v. Ram Sahai & Others

, the deceased and the main accused were

brothers. There was a dispute among them regarding the sharing of family property. One

day the four accused persons attacked the deceased. The main accused shot at the deceased

which result in his death. Here the question was whether there was common intention on

the part of the accused to commit the murder or not. The court held that the other accused

persons cannot be held liable for the murder committed by the first accused. He had done

this in the end of the incident. There was nothing to indicate that all the accused had shared

the intention with the main accused to kill the deceased with a gun shot. Since there was no

2000 (2) KLT SN 16.

1986 Cr.L.J. 197.

meeting of minds between the accused in killing the deceased, it was held that the others

were not guilty under Section 302 IPC read with 34. But they were convicted under Section

323 read with 34.

In Harjit Singh v. State of Punjab (2002), the Supreme Court held that the common

intention can develop on the spur of the moment.

In Rishi Deo Pandey v. State of U.P., the Supreme Court held that common intention

may develop on the spot of a crime.

In Furtherance of

In Oxford English Dictionary the meaning of ‘in furtherance of’ is given as the ‘action

of helping forward’. It means that the offence must be committed as per the common

intention of the offenders. In other words the offence committed and the common intention

must have relation. The principle is well explained in the case of Mehboob Shah v.

Emperor

, which is also known as Indus River Case. In this case the deceased, Allah Dad

and few others were collecting reeds on the banks of the river in a native boat. Another man

Muhammad Shah was bathing on the bank of river. He warned them from collecting reeds

from his land. Allah Dad and others did not care. After collecting reeds, while they were

returning, Allah Dad was accosted by Quasim Shah, nephew of Muhammad Shah. He tried

to take reeds from the boat.

Allah Dad picked up the reeds and struck Quasim Shah. Quasim Shah shouted for

help, and Muhammad and Wali Shah appeared on the scene. They were holding loaded

guns in their hands. It seems that they were out for shooting in the adjoining forest. On

seeing them Allah Dad and others tried to escape. But Wali Shah fired at Allah Dad who

died on the spot. Mahbub Shah also fired one of Allah Dad’s friends causing some slight

injury. Wali Shah absconded and Mahbub Shah was arrested and was sentenced to death

for murder of Allah Dad by the Lahore High Court. He appealed before the Privy Council

and Privy Council held that he is not liable. It was also held that the murder was not

committed in furtherance of the common intention. More over the real criminal was

absconding.

Participation in Action

AIR 1945 PC 118.

The persons who are involved in the offence must do some act. One who has not done

any act in committing crime cannot be held liable. It is to be proved that the accused has

done some act in furtherance of the common intention of all. The mere presence of the

accused without anything more is not enough to make him liable. The physical presence

must be coupled with actual participation. Participation may be of a passive character, such

as standing by a door. It may be by showing a mere gesture or expression which provide a

signal for another to commit an offence.

In Barendra Kumar Ghosh v. Emperor

(Post Master Murder Case), Barendra Kumar

was convicted for committing murder even though the actual offence was committed by

some others. In this case a post master was murdered by two or three persons inside the

post office. He was counting money by sitting inside. The offenders entered inside and

demanded the money. Then the post master refused to give the money and they shot him

dead. After that they escaped from the scene even without taking money. Barendra Kumar

was holding a gun and was watching outside. He alone was caught by the Post office staff

and was convicted by the court. Even though he did not commit offence, his presence there

was in furtherance of the common intention and hence he was convicted.

In Beharilal v. State

, three persons attacked one Praveen Kumar. One of the accused

showed a knife and took him to the nearby bushes. Among the other two accused, one

remained calm and the other took a sum of Rs.14 /- from the pocket of Praveen Kumar and

removed watch from him. After committing robbery, the accused tried to run away. Two of

them were caught and were brought to the police station. The question was whether there

was common intention on the part of the accused. Actually the robbery etc was committed

by two accused and the other man was silent. But the court held that even if he kept quiet,

there was common intention on the part of them and all were held liable.

In Kassin Pillai Asanaru Kutty v. State of Travancore-Cochin (1951), Hydrose Kunju

had killed the father of A and B and uncle of C. A, B and C in turn out of revenge, waited

for Hydrose Kunju near an uninhabited hut fully armed and attacked him with their

dangerous weapons and killed him. The court held that all the accused were liable for

murder under S.302 read with S. 34 of the I.P.C.

1925 PC 1.

1985 Cr.L.J. 1507.

The provision relating to group liability are dealt with in Ss.34 to 38, 120A, 102B,

149, 396 and 460 of the IPC. This provision may be classified into 3 categories:

1) Liability on the basis of common intention Ss.34 to 38.

2) Criminal conspiracy Ss.120A, 120B.

3) Liability on the basis on common object S.149.

Liability on the basis of common intention

Ss.34 to 38 is in the Chapter II of the IPC dealing with general explanation.

These sections state the conditions in which a man may be held constructively liable

for the acts committed by the other member of a group.

When such an act is criminal by reason of its being done with a criminal knowledge or

intention

According to S. 34 whenever an act, which is criminal only be reason of its being

done with a criminal knowledge or intention, is done by several persons, each of such

persons who joins in the act with such knowledge or intention is liable for the act in the

same manner as if the act were done by him alone with that knowledge or intention.

Effect caused partly by act and partly by omission

By virtue of S. 36 wherever the causing of a certain effect, or an attempt to

cause that effect, by an act or by an omission, is an offence, it is to be understood

that the causing of that effect partly by an act and partly by an omission is the same

offence.

Illustration

A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by

beating Z. A has committed murder.

Co-operation by doing one of several acts constituting an offence

S. 37 provides that when an offence is committed by means of several acts,

whoever intentionally co-operates in the commission of that offence by doing any

one of those acts, either singly or jointly with any other person commits that offence.

Illustrations

(a) A and B agree to murder Z by severally and at different times giving him small doses

of poison. A and B administer the poison according to the agreement with intent to

murder Z. Z dies from the effects of the several doses of poison so administered to

him. Here A and B intentionally co-operates in the commission of murder and as

each of them does an act by which the death is caused, they are both guilty of the

offence though their acts are separate.

(b) A and B are joint jailors, and as such have the charge of Z, a prisoner, alternately for

six hours at a time. A and B, intending to cause Z’s death, knowingly co-operate in

causing that effect by illegally omitting, each during the time of his attendance, to

furnish Z with food supplied to them for that purpose. Z dies of hunger. Both A and

B are guilty of the murder of Z.

omits to supply Z with food in consequence of which Z is much reduced in strength,

but the starvation is not sufficient to cause his death. A is dismissed from his office,

and B succeeds him. B, without collusion or co-operation with A, illegally omits to

supply Z with food, knowing that he is likely thereby to cause Z’s death. Z dies of

hunger. B is guilty of murder, but, as A did not co-operate with B. A is guilty only of

an attempt to commit murder.

Persons concerned in criminal act may be guilty of different offences

S. 38 states that 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.

Illustration

A attacks Z under such circumstances of grave provocation that his killing of Z would be

only culpable homicide not amounting to murder. B, having ill-will towards Z and

intending to kill him, and not having been subject to the provocation, assists A in killing Z.

Here, though A and B are both engaged in causing Z’s death, B is guilty of murder, and A

is guilty only of culpable homicide.

Decided cases:

Nachimuthu Goundar v. State [1947 Mad 425]

The five accused persons had caused the death of a police constable. The

police constable was taking two of the accused to the police station. The brutal beating

inflicted on the police constable by the accused caused his death. During the course of

the attack one of them shouted “finish him”. This indicated a common intention

developing in the course of committing the crime. All of them were held liable for

causing the death of the constable.

Sheoram Singh v. State [AIR 1972 SC 2555]

In this case a father and son had trespassed into the house of ‘H’ with the object

of killing ‘D’, H’s son. ‘H’ dies at the shot of the father when ‘H” refused to send ‘D’

out of the house. In this case the son was not found guilty for the death of ‘H’ because

there was no clear evidence to show any common intention to kill ‘H’. But the son was

fond guilty of attempt to murder ‘D’ while the father was found guilty of murder of

‘H’.

The SC held that common intention may develop all of a sudden during the

course of the occurrence of the crime. There should be clear proof of such common

intention.

Kashmire Singh v. State of Punjab [AIR 1979 SC 1435]

In this case the evidence clearly disclosed prior meeting of minds of the three

accused who decided to kill Joginder Singh. In pursuance of this all the three went

together with arms and arrived at the scene together and one of them delivered a gun

shot injury. The appellant also gave a blow with a ‘gandari’. The SC pointed out that

it was a clear case for the applicability of S.34.

Liability on the basis on common object S.149

S.149 forms part of chapter 7 of the IPC dealing with offences against public

tranquillity. S.149 creates a specific offence and declares that a member of an

unlawful assembly is liable for any offence committed by the other fellow members of

that assembly.

The essence of joint liability under S.149 is that the criminal act must have been

done with a view to fulfilling the common object of an unlawful assembly. In the

absence of proof of a common object, a member of an unlawful assembly cannot be

held liable for the offence committed by another member of such an assembly.

In order to invoke S.149 of the IPC, the accused must be guilty either of rioting

or of being a member of an unlawful assembly. ie he must be convicted either under

S.147(Punishment for rioting) or under S.143 ( punishment for being member of an

unlawful assembly) and the accused must be aware of the likelihood of the commission

of the offence.

Similarly any sudden and unpremeditated act done by a member of an unlawful

assembly would not render the other members of the assembly liable. Again, mere

presence at the scene of occurrence, without proof of anything more is not enough for

conviction under S.149.

S.149: Every member of unlawful assembly guilty of offence committed in prosecution

of common object:-

If an offence is committed by any member for an unlawful assembly in

prosecution of the common object of that assembly, or such as the members of that

assembly knew to be likely to be committed in prosecution of that object, every person

who, at the time of the committing of that offence is a member of the same assembly is

guilty of that offence.

S.149 imposes vicarious liability on every member of unlawful assembly. For a

liability under this section the following three elements are necessary:-

a) Any member of the unlawful assembly should commit an offence.

b) Commission of the offence should be in the prosecution of the common object of the

unlawful assembly, and\

c) The offence must be such as the members of the unlawful assembly knew to be

likely committed in prosecution of the common object.

Vittal v. State of Maharashtra [AIR 1983 SC 179]

The accused, several in number, collected at different points in small groups with

a view to avoiding any attention. As soon as they saw the victim approaching they

collected together and attacked the deceased jointly and in succession. After the death

of the deceased, they dragged his body together to hide it. It was held that all the

accused were animated by a common object and have become members of an

unlawful assembly.

Chellappan v. State of kerala [AIR 1979 SC 176]

Where the accused, several in number, armed with dangerous weapons,

committed lurking house trespass by entering in the wireless station after breaking

open the doors and windows and assaulted the inmates, the SC held that they were the

members of unlawful having a common object of committing lurking house trespass.

But where large crowds collect, say when an accident takes place, and one of the

members of the crowd commits an act of assault on the person who caused accident,

others cannot be held responsible as they were neither a member of unlawful

assembly nor they have any common object.

In Muthu Naicher v. State of TN [AIR 1978 SC 1647]

Sudden fight between two groups or free fight also do not fall under S.149.

Regarding proof:

It will be a matter of great difficulty for the prosecution to bring out clearly the

‘common intention’ of a group of persons. It has to be inferred from various facts,

circumstances and contact of the several persons involved in the commission of the

criminal act.

Magsoodan v. State of UP [AIR 1983 SC 126]

The manner in which the accused arrived on the scene and mounted the attack, the

determination and concert with which the beating was done and the nature of

the injuries caused by one or some of them are some of the determining factors.

Distinction between Common Intention

and Common Object

1. In Common intention number of persons must be more than one. But it is not compulsory

that the number of members should be Five.

Section 34.

Section 149.

But an unlawful assembly must consist at least 5 persons.

2. Common intention it does not create specific and substantive offence, but only states a

rule of evidence. It is always read with other substantive sections. Punishment cannot be

imposed solely upon this Section.

Common object creates a specific and substantive offence. Punishment can be

imposed solely depending upon Section 149.

3. Common intention requires under Section34 may be of any type.

Common object under this Section 149 must be one of the objects mentioned in

Section 141 i.e. to commit an offence under such objects.

4. “Prior meeting of minds” is necessary before a wrongful act is done under this

Section. It requires that all the accused must meet together before actual attack participated

by all takes place.

“Prior meeting of minds” under this Section is not mandatory. Mere membership of

unlawful assembly at the time of commitment of crime is sufficient.

5. Only offence committed under Section 34 in furtherance of common intention is

punishable.

Members of unlawful assembly under this Section are not only liable for act done in

prosecution of common to be done in prosecution of the unlawful object.

“Voluntarily”

According to S. 39 a person is said to cause an effect “voluntarily” when he causes it

by means whereby he intended to cause it, or by means which, at the time of

employing those means, he knew or had reason to believe to be likely to cause it.

Illustration

A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a

robbery and thus causes the death of a person. Here, A may not have intended to cause

death; and may even be sorry that death has been caused by his act; yet, if he knew that he

was likely to cause death, he has caused death voluntarily.

“Offence”

By virtue of S. 40 except in the [Chapters]

and sections mentioned in clauses 2 and

3 of this section, the word “offence” denotes a thing made punishable by this code.

In Chapter IV, [Chapter V A]

and in the following sections, namely Sections [64, 65, 66,

[67]

, 71]

, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221,

222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the words

“offence” denotes a thing punishable under this Code, or under any special or local law as

hereinafter defined.

And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word “offence” has the

same meaning when the thing punishable under the special or local law is punishable under

such law with imprisonment for a term of six months or upwards, whether with or without

fine.]

“Special law”

Subs. by Act 27 of 1870, sec.1, for the original section.

Subs. by Act 8 of 1930, sec.2 and sch. I, for “Chapter”.

Ins. by Act 8 of 1913, sec.2.

Ins. by Act 10 of 1886, sec.21(1).

Ins. by Act 8 of 1882, sec.1.

According to S. 41 a “special law” is a law applicable to a particular subject.

“Local law”

By virtue of S. 42 a “local law” is a law applicable only to a particular part of

[[India]

]

“Illegal”, Legally bound to do”

S. 43 provides that the word “illegal” is applicable to everything which is an offence

or which is prohibited by law, or which furnishes ground for a civil action; and a

person is said to be “legally bound to do” whatever it is illegal in him to omit.

“Injury”

S. 44 states that the word “injury” denotes any harm whatever illegally caused

to any person, in body, mind, reputation or property.

“Life”

According to S. 45 the word “life” denotes the life of a human being, unless the

contrary appears from the context.

“Death”

By virtue of S. 46 the word “death” denotes the death of a human being unless the

contrary appears from the context.

“Animal”

Subs. by Act 3 of 1951, sec.3 and sch., for the “the States” which had been subs. by the A.O.1950, for “ the Provinces”.

Subs. by the A.O.1948, for “British India”.

S. 47 provides that the word “animal” denotes any living creature, other than a

human being.

“Vessel”

According to S. 48 the word “vessel” denotes anything made for the

conveyance by water of human beings or of property.

“Year”, “Month”

S. 49 states that the wherever the word “year” or the word “month” is used, it is to be

understood that the year or the month is to be reckoned according to the British calendar.

“Section”

By virtue of S. 50 the word “section” denotes one of those portions of a chapter of this

Code which are distinguished by prefixed numeral figures.

“Oath”

S. 51 provides that the word “oath” includes a solemn affirmation substituted

by law for an oath, and any declaration required or authorized by law to be made before a

public servant or to be used for the purpose of proof, whether in a Court of Justice or not.

“Good faith”

By virtue of S. 52 nothing is said to be done or believed in “good faith” which is done

or believed without due care and attention.

“Harbour”

S. 52 A states that the except in Section 157, and in Section 130 in the case in which

the harbour is given by the wife or husband of the person harboured, the word

“harbour” includes the supplying a person with shelter, food, drink, money, clothes,

arms, ammunition or means of conveyance, or the assisting a person by any means,

whether of the same kind as those enumerated in this section or not, to evade

apprehension.]

TOPIC 7

PUNISHMENTS UNDER THE INDIAN PENAL CODE

(Ss.53 to 75)

Sec. 53 provides five kinds of punishments which can be inflicted on the offender:-

1) Death penalty

2) Imprisonment for life

3) Imprisonment (Rigorous and Simple)

4) Forfeiture of property

5) Fine

1. Death Penalty( Capital Punishment)

It is the extreme penalty under the Code. In the earlier days, it was known as death

sentence and even for offences like theft and forgery, the punishment was death sentence.

The death sentence is now almost abolished and awarded for offences like murder,

aggravated forms of dacoity and offences against the state. There are vehement arguments

both in favour and against death penalty, but the latter is gaining importance slowly. Death

penalty is now imposed in only in rare of the rare case only.

In Mithu v. State of Punjab

, the Supreme Court struck down S.303 of I.P.C. as

unconstitutional. S. 303 provide that if a person under sentence of imprisonment for life

commits murder, he shall be punished with death.

Ins. by Act 8 of 1942, sec.2.

In Bachan Singh v. State of Punjab

, the Supreme Court held that death sentence is to

be given only in rarest of rare cases.

In Sushil Murmu v. State of Jharkhand

, it was observed that in “rarest of rare cases

when collective conscience of the community is shocked that it will expect the holders of

the judicial power centre to inflict death penalty irrespective of their personal opinion as

regards desirability or otherwise of retaining death penalty, death sentence can be awarded.

The may entertain such sentiments in the following circumstances (1) When the offence is

committed in an extreme brutal, grotesque, diabolical, revolting or dastardly manner so as

to arouse intense and extreme indignation of the community; (2) When the murder is

committed for the motive which evinces total depravity and meanness; e.g.: murder by

hired assassin for money or reward or a cold-blooded murder for gains of a person vis-à-vis

whom the murderer is in a dominating position or in a position of trust, or murder is

committed in the course for betrayal of the motherland; (3) When murder of a member of

Scheduled Caste or minority community etc., is committed not for a personal reasons but in

a circumstances which arouse social wrath, or in the case of ‘bride burning’ or ‘dowry

death’ or when murder is committed to remarry for the sake of extracting dowry once again

or to marry another woman on account of infatuation; (4) When the crime is enormous in

proportion. For instance when multiple murders, say of all or almost all the members of

family or a large number of person of a particular caste, community, or locality, are

committed; (5) When the victim of murder is an innocent child, or a helpless woman or old

or inform person or a person vis-à-vis whom the murder is in dominating position or public

figure generally loved and respected by the community”.

2. Imprisonment for Life

Next to capital punishment, life imprisonment is a severe punishment. A life

imprisonment can be given for a term of not exceeding 14 years. The state can also reduce

the period of the punishment due to good conduct, etc. This punishment is given for most

of the serious offences like murder, culpable homicide aggravated forms of grievous hurt,

robbery, etc.

AIR 1983 SC 473.

AIR 1980 SC 898.

2004 (1) KLT SN 87.

3. Imprisonment

Imprisonment is the confinement of a person in a prison by way of punishment. It

need not be in any prescribed place, but in any place. In this method of punishment the

individual liberty of the person is curtailed. There are two types of imprisonment.

a) Rigorous Imprisonment

b) Simple Imprisonment.

In rigorous Imprisonment the offender is subjected to hard labour. In Simple

Imprisonment the offender is subjected only to light work

For majority of offences, the IPC has provided terms and period of imprisonment.

4. Forfeiture of Property

It is of ancient British origin, but the IPC has abolished it in 1921. Only three sections

prescribe this type punishment now. They are Sec. 126, 127, and 129.

4. Fine

It is a financial penalty imposed on the offender, in the case of less serious offences.

Sec.63 lays down that in cases where no specific amount of the fine is fixed, the amount of

the fine is unlimited but should not be excessive. The imprisonment in default of payment

of fine is simple and as follows:-

Fine Imprisonment

1) Rs.50 or less Two months or less

2) Rs.100 or less Four months or less

3) Above Rs 100 Six months or less

Fine may be imposed along with imprisonment for offences like assault, (small)

thefts, bribery in elections etc.

Solitary Confinement

It is an aggravated form of imprisonment. The convict is imprisoned without any

companion in a separate room. This should not exceed 14 days at a time. It must be

imposed at intervals. The period of solitary confinement is reduced proportionately

according to the duration of imprisonment. It is as follows:

Period of Imprisonment. Solitary Confinement.

Below 6months --- 1 month

Between 6 months and 1 year --- 2 months

Exceeding 1 year --- 3 months

Retention of Death Penalty

There are vehement arguments both for and against retentions of death penalty. The

view of ‘Majority of Jurists’ is that the death penalty must be abolished in toto. The death

penalty has been abolished in several European countries and in some of the states of

America. In England, it has been retained for serious offences of murder and treason. Under

IPC death sentence is awarded for murder, offences against the state, aggravated forms of

dacoity and false evidence. Thus death penalty is not totally abolished but awarded only

rarest of rare cases.

TOPIC 3

GENERAL DEFENSES AND EXCEPTIONS

Section 76 to 106 of the Penal Code deal with General Exceptions. These exceptions

apply not only to the offences punishable under the Penal Code, but also to the offences

punishable under any special or local law.

S.73.

The General Law is that prosecution must prove the guilt of the offender beyond

reasonable doubt. But as per Section 105 of the Indian Evidence Act, 1872, the burden of

proof is on the accused if he claims the benefit of any of the general exceptions. These

general exceptions deal with two broad classes. First is excusable and the second is

justifiable. Excusable offences are those acts which are excused for want of necessary mens

rea. In such cases the act is not criminal because the guilty intention is absent. Sections 76

to 95 deal with excusable offences. In case of justifiable offences the acts are not excused

but justified. Section 96 to 106 deals with the justifiable offences.

The exceptions provided in the Indian Penal Code are:

1) Mistake (Sections 76 and 79)

2) Judicial acts(Sections 77 and 78)

3) Accident (Section 80)

4) Necessity (Section 81)

5) Infancy (Sections 82 and 83)

6) Insanity (Section 84)

7) Drunkenness (Sections 85 and 86 )

8) Consent (Sections 87 to 93)

9) Compulsion (Section 94)

10) Trifles (Section 95)

11) Right of private defence (Sections 96 to 106)

Mistake

Sections 76 and 79 deal with mistake. These Sections are based on the English

Common law Maxim ‘ignorantia faciti excusat’. Mistake of fact may happen due to

forgetfulness, ignorance, stupidity or even superstition. But it should not be due to design,

pre-arrangement or pre-concert. If mistake of law is allowed as a defence it would be

pleaded in all cases. But ignorance of law may however be ground for reduction in the

sentence, but it cannot lead to an acquittal.

Section 76 deals with cases in which a person acts in the belief that he is bound by law

to act. The Section says that nothing is an offence which is done by a person, who is or who

by reason of a mistake of fact and not by reason of a mistake of law in good faith believes

himself to be, bound by law to do it. To get the benefit of this Section the accused must

have acted in good faith. In other words if a person has acted without due care and attention

he will be held responsible for the mistake committed.

In R. v. Prince

and R. v. Tolson are the two important cases on this subject.

In R. v. Prince, as per Section 55 of the Offences Against Persons Act 1861, taking an

unmarried girl below the age of 16 years without the consent of the guardian is an offence

in England. Henry Prince took a girl below the age of 16 years under the belief that she was

above 16.He did not make any enquiry to find out the actual age. He was convicted for

kidnapping even though he pleaded mistake of fact.

In R. v. Tolson

, Mrs. Tolson married second time during the life time of her

first husband Mr. Tolson. As per Section 57 of the Offences Against Persons Act 1861,

marrying during the life time of the first spouse is an offence. The Proviso to that Section

says if nothing is heard for a continuous period of 7 years, second marriage is permissible.

Mrs. Tolson waited for a period of five years. Mr. Tolson’s whereabouts were not known

for five years. She made sufficient enquiries through sufficient sources and finally she

came to know that he was dead. So she contracted a second marriage after five years. Soon

after the second marriage Mr. Tolson came back and prosecuted Mrs. Tolson for

committing bigamy. The court rejected the plea and allowed the defence of mistake of fact.

In State of West Bengal v. Mangal Singh

, the Deputy Commissioner of Police

ordered to open fire to a violent mob. A subordinate police officer opened fire and it

caused death of two persons. The Sessions Court convicted the police officials under S.

302 read with S. 34.

In an appeal, the High Court acquitted them. The State preferred an appeal against the

order of the High Court. The Supreme Court affirmed the order of the High Court and held

1875 L.R. 2 C.C.R. 154.

1889 (23) QBD 168.

1984 Cr. L.J. 1683 [SC].

that a subordinate police officer carrying out orders of a superior officer in obedience to a

lawful order is not liable to be punished.

Emperor v. Jagmohan Thukral

, the accused was travelling from Sharanpur to

Dehradun. When he reached Mohand pass he saw the eyes of an animal behind bush. He

took loaded gun and fired at it. This resulted in injury to two military officers who were

practicing military exercises. The accused was charged with attempt to commit murder.

The court held that the accused mistakenly believed that the eyes he saw were those of

animals, and so he is not liable for any crime.

In State of Orissa v. Ram Bahadur

, the accused caused death of one adivasi woman

and injured three others in the mid night inside an abandoned aerodrome. He was charged

for murder and grievous hurt. The defence of the accused was that he bonafidely believed

that he was attacking a set of dancing ghosts in the mid of night in that abandoned place.

The court accepted the defence and held that the accused is entitled to the benefit of S.79 of

the Code. The court held, a person who by reason of mistake of fact, in good faith believes

himself to be justified by law in doing act is protected under S.79 of the Code.

In State of Orissa v. Bhagwan Barik

, the accused committed murder of the deceased

by striking with a lathi on the head. The defence was that he believed that he was striking a

thief. The court rejected the defence since the accused and the deceased were in strained

relations. Moreover the accused was well aware of the fact that the deceased had gone to

the pond to search his lost utensil.

Judicial Acts

Section 77 protects judges from criminal prosecution and Section 78 protects the acts

of a person acting under the judgment or order of a court. All acts of a judicial nature, even

if not performed in court are protected by Section 77. The judge must be acting within his

jurisdiction and also he must be acting judicially. Acting judicially means acting as a judge.

Section 77 lays down that nothing is an offence which is done by a judge when acting

judicially in the exercise of any power which is, or which in good faith he believes to be

given to him by law. The protection given to an officer under Section 78 is wider than that

AIR 1947 All. 99.

1960 Cr,L.J. 1349(Orissa).

1987 Cr.L.J. 1115 (SC).

given to a judge under Section 77. As per Section 78, the officer is not concerned with the

jurisdiction of the court. An officer of the court will not be protected if he believes that the

judgment or order by which he has to act is without jurisdiction. Judgment here means the

statement given by the judge, as the grounds of a decree or order.

In Chunder Narain Singh v. Birto Bullub Geogee

, the Calcutta High Court justified

the immunity extended to a judge.

In Daya Shankar v. High Court of Allahabad

, a judicial officer was found copying

while writing his first semester LLM examination. The Supreme Court held that the

conduct of the petitioner was unworthy of a judicial officer. According to the court, judicial

official officers cannot have two standards one in the court and another outside the court.

They must have only the standard of rectitude, honesty and integrity. The dismissal of the

petitioner form judicial service was upheld.

Accident

Accident means an unintentional or an unexpected act. Accident and misfortune are

good defence in criminal law. The reason is that in order to constitute a crime the act must

be done with guilty intention. In case of accidents guilty intention is lacking. Section 80

provides that nothing is an offence which is done by accident or misfortune and without

any criminal intention or knowledge in the doing of a lawful act in a lawful manner by

lawful means and with proper care and caution.

In the Section reference is made to misfortune also. Misfortune differs from accident.

Accident involves only injury to another. But misfortune causes injury as much to himself

as to another unconnected with the act.

In order to invoke Section 80, first, the act must have been done without any criminal

intention or knowledge. Secondly the act alleged against the accused must be lawful. While

doing an unlawful act if an accident happens, that is not excusable as per this Section.

(1874) 14 Beng. L. R. 254,257.

AIR 1987 SC 1469; See also Ravichandran Iyer v. A.M. Bhattacharjee J 1995 (5) SCC 457; K. Veeraswami v. UOI 1991 (3)

SCC 655.

In Jogeshwar v. Emperor

, the accused was beating a person with his fist. Then the

latter’s wife interfered with a two month’s baby on her shoulder. The accused hit the

women. The blow struck the child on the head, and the baby died from the effects of the

blow. He was held liable, even though the child was hit by accident. The reason is that

accused was not doing a lawful act in a lawful manner by lawful means. Thirdly the act

must have been done after taking proper care and caution.

In Tunda v. State

, A and B were friends. They agreed for a wrestling. During the

wrestling B received injuries in his head while he was thrown down by A. As a result of

the injuries B died. The court held that the injuries were accidental and not intentional and

A was not liable for any offence. His act fell with in S 80 of the Code.

Necessity

Section 81 provides that nothing is an offence merely by reason of its being done with

the knowledge that it is likely to cause harm; if it is done without any criminal intention to

cause harm, and in good faith for the purpose of preventing or avoiding other harm to

person or property. The explanation to the Section says that it is a question of a fact

whether the harm to be prevented or avoided was of such a nature and so imminent as to

justify or excuse the risk of doing the act with the knowledge that it was likely to cause

harm.

This provision deals with what is known as ‘compulsion by necessity’, in English law.

The principle is that where a person meets with two evils, one of which is unavoidable,

choose the lesser rather than the greater. The law justifies his action and makes him not

responsible for the consequences of his action. The reason is that mens-rea is lacking in

such circumstances. For eg. pulling down houses to prevent fire from spreading. In India

the maxim “necessity vincit legem” which means “necessity overcomes law” has been

accepted. The essentials of Section 81 are:

1) The act must have been done under good faith; and

2) There must not be mens rea.

AIR 1924.

AIR 1950.

There is an interesting English case on this subject by name R v. Dudley & Stephen.

Three seamen and a boy were compelled to be put into a small boat after a shipwreck. They

had no food and no water in the boat. In order to save themselves from death they killed the

boy and fed on the boy’s body. Then they were rescued and brought to the shore and were

prosecuted for committing murder. Their contention that they were in absolute necessity to

save themselves was negatived by the court and were convicted for murder. The court held

that-

1) Self preservation is not a necessity;

2) No man has the right to take other’s life to preserve his own; and

3) There is no necessity that justifies homicide.

In London Borough of Southwark v. Williams

, the defendants, two homeless families

were unable to obtain housing. With the help of a squatter’s association, they made an

orderly entry into house owned by borough council. The council obtained an order for

possession. The defendants appealed and relied, inter alia, on the defence of necessity. It

was pointed out in this case that necessity does not justify the homeless in "squatting" in

unoccupied buildings.

Infancy

Section 82 and 83 exempt children from criminal liability. Section 82 provides

complete exemption and Section 83 provides partial exemption. As per Section 82, if a

child below the age of seven years commits an offence, he will be fully exempted from

liability. It is presumed that a child below seven years does not realize and does not intend

the consequences o his act. In other words it is presumed that child below the age of 7 years

cannot have mensrea. If a child acts as an agent of an adult and commits a crime the adult

who employed the child for such an act will be liable as an abetter.

As per Section 83, a child above seven years and below twelve years is exempted

from liability subject to one restriction. That is, if he does not have the sufficient maturity

of understanding, he will be exempted from the liability. A child above seven years and

below 12 years is presumed to be doli in capax i.e., incapable of committing the offences.

AIR 1884.

(1971) 2 All E. R. 178 (C.A.).

But the presumption can be rebutted by producing sufficient evidence. In Ulla Mahapatra

v. King

, a boy over eleven and below twelve years picked up his knife and advanced

towards another. He threatened the other by saying that he would cut him into bits and did

actually what he said. It was held that he was having sufficient maturity of understanding,

because he did what he intended. Therefore he was held liable.

In Marsh v. Loader

, while stealing a piece of wood from the complainant's house a

child was caught and given into custody. Since the child was under the age of 7 years he

was discharged.

In Marimuthu's case the accused, a girl of 10 years, a servant of the complainant

picked up his silver button worth eight annas and gave it to her mother. She was convicted

and sentenced to a month's imprisonment. But the High Court quashed the conviction and

held that there was no finding by the Magistrate that the accused had attained sufficient

maturity of understanding the nature of her act.

Insanity

Criminal Law gives complete protection to a lunatic. Sec.84 of the IPC says that the

offence done by a person of unsound mind is not an offence.

It says “Nothing is an offence which is done by a person who at the time of doing it,

by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he

is doing what is either wrong or contrary to law”. Thus the lunatic must be incapable of

knowing the nature of the act, or incapable of knowing that the act is wrong or contrary to

law. So every mentally diseased person is not free from liability. Only the person who

satisfies Section 84 is free from criminal liability.

Medical Insanity and Legal Insanity

Medical insanity need not be legal insanity. Mere unsoundness of mind is sufficient

for medical insanity. In legal insanity the insane person should not know what he was doing

at the time of committing the offence. Only a legally insane person is free from criminal

liability.

Essentials of Defence of Insanity

AIR1950.

(1863) 14 CBNS 535.

1) The offence must be committed by a person of unsound mind.

2) He must be incapable of knowing the nature of the act at the time of committing such

act.

3) He must be incapable of knowing that his act is wrong or contrary to law. Thus IPC

gives complete protection to insane person like idiots, lunatics and completely drunken

persons. All insane persons are not free from criminal liability. Only the insane person

who are incapable of knowing the nature of their act or incapable of knowing that the act is

wrong or contrary to law are free from criminal liability.

Test for Unsoundness of Mind

1) The person must be unsound mind at the time of committing the offence.

2) Insanity before or after the commission of the crime is not a valid defence, because

when the offence was committed the person was not insane.

In R v. McNaughten’s case:

McNaughten was respectable man leading a normal life. He was suffering from a

mental disease. Unknown to his friends, he had a delusion that one of his enemies, the

Prime Minister Sir Robert Peel, was about to make his life impossible. So he planned to kill

Sir Robert Peel. One day he took his pistol and went to Sir. Robert’s house, but killed one

Mr. Durmmond, his security thinking that he was Sir Robert. The court held that

McNaughten could not be held liable on the ground of insanity.

The following rules were laid down in the case:

1) The offender must know the nature of his act for making him criminally liable.

2) The offender must know that the act was wrong or contrary to law.`

In Lakshman v. Emperor, Lakshman was suffering from high fever, he was annoyed

by his children who were crying. So he killed all of them by cutting their throats. The court

held that Lakshman was guilty of murder because he failed to prove that he was totally

unconscious of the nature of his act.

Durham Doctrine

It means that an accused is not criminally liable if his unlawful act is the

product of mental disease or mental defect.

In K v. Byrne, Byrne, the accused, strangled a young woman to death and multilated

her body. The accused admitted his act. The medical evidence showed that he was a sexual

psychopath (excessive sexual desire). The court held that sexual desire is under the control

of a man’s will power and hence, he could not be deemed to be insane as under

McNaughten rules.

Delirium Tremens (Excessive liquor drunken diseases)

It is a kind of madness due to excessive liquor drinking. The rules of insanity apply to

persons suffering from Delirium Tremens. Similarly the rules of insanity apply to acts

committed by persons who are intoxicated and such intoxicating substances being

administered without their knowledge or against their will.

In Muhammed v. State of Maharastra

, the accused after killing his wife and

daughter, remained in the locked door and shouted "save my wife, save my children, call

the police". When the door was opened by an axe from outside, he was found standing

near the door with a chopper in hand. His wife and daughter were lying on the ground with

bleeding injuries. The Supreme Court rejected his plea of insanity and sentenced him to

imprisonment for life.

In State of Kerala v. Ravi

, the accused was frustrated lover. He stabbed a young girl

causing her death. The High Court rejected the plea of insanity and sentenced him to

imprisonment for life.

In Nivrutti v. State of Kerala

, the accused killed his own 2 months old son under an

illusion that the child was a Devil born to kill him. The Bombay High Court acquitted the

accused on the ground of insanity.

In Kuttappan v. State of Kerala

, the accused murdered his wife by chopping off her

head and gone to the police station and placed her head in the station verandah. The

appellant had a delusion that his wife was unchaste. The Kerala High Court acquitted the

AIR 1972 SC 2443.

1978 KLT 177.

1985 Cr.L.J. 449.

1986 Cr.L.J. 271.

accused on the ground of insanity. The court held that a person is legally insane when he is

incapable of knowing the nature of the act that what he was doing was wrong or contrary to

law.

Drunkenness

Sections 85 and 86 of the Code deal with the law relating to drunkenness. These

Sections emphasis that voluntary drunkenness is no excuse to criminal liability. As per

Section 85 unsoundness of mind produced by the offender by voluntarily consuming

intoxicants is no defence to a criminal charge.

Section 85 reads as ‘nothing is an offence which is done by a person who, at the time

of doing it, is by reason of intoxication incapable of knowing the nature of the act or he is

doing what is either wrong or contrary to law, provided that the things administered to him

without his knowledge or against his will. This Section gives the same benefit which is

given by S. 84 to a person of unsound mind.

Drunkenness may result from drinks or drug. It may be voluntary or involuntary. If

the intoxicant is administered by force or by fraud, it is called involuntary drunkenness.

In Jetturam Sukhra Nagbanshi v. State of M.P

, the accused drank liquor, at the

compulsion of his father, to get relief from pain, and afterwards he committed an offence. It

was held that he consumed liquor against his will and held he was not responsible.

As per Section 86, if a man has voluntarily drunk, even if he, by reason of his

intoxication, is incapable of knowing the nature of his act, is liable to be dealt with as if he

had been sober. In such circumstances incapacity arises by one’s own act and hence is not

excusable.

The leading English case is D.D.P. v. Beard

. In this case Beard ravished a girl of

thirteen years. When she struggled to escape, he placed his hand over her mouth and his

thumb happened to be on her throat. This caused her death by suffocation. He did the act

while he was intoxicated. The court held that the principle that a man is expected to intend

the natural consequences of his acts can be rebutted. In the case of a drunken man, it must

be shown that his mind has been so affected by the drink that he was incapable of knowing

AIR 1950.

AIR 1920.

that what he was doing was dangerous. In this case Beard’s condition was not like that. The

court found that he was guilty of committing murder.

In Basuddev v. State of Pepsu

, Supreme Court discussed the effect of voluntary

intoxication on criminal liability. The appellant, a retried military officer excessively drunk

when he went to attend a wedding party. He asked diseased, a young boy, to step aside to

give him a seat. The boy did not move and the appellant shot him. The appellant was

capable of moving independently. He was standing when he asked for forgiveness. All the

above and other related factors proved that he was not incapable to form the intention to

cause bodily injury sufficient in the ordinary cause of nature to cause to death. Thus he was

found liable for murder. Thus excessive drunkenness is not a defence.

In Sahadevan v. State of Kerala

, the court held that in order to get the benefit of the

general exception under S.85 of the I.P.C. it must be proved by accused that the

intoxication was caused against his will. Voluntary intoxication is not a defence.

Consent

Consent means agree to do something. Sections 87 to 94 deal with consent. As per

Section 87 consent never justifies death or grievous hurt. Any harm other than death or

grievous hurt, even though intended or known by the doer to be likely to cause will not be

an offence under the following conditions:

1. If the act is done without any intention of causing death or grievous hurt.

2. Harm is caused to any person with his consent.

3. Person giving consent is above 18 years of age.

4. Consent given may be expressed or implied.

This Section is based on the maxim ‘volunti non fit injuria’ which means, one who

consents suffers no injury. Again this maxim is based on two principles, that every person

is the best judge of his own interest and no man will consent to what he thinks hurtful to

himself. Ordinarily, games such as fencing, single sticks, boxing, football and the like are

protected under this Section. As per Section 88 any harm other than intentional death may

AIR 1956.

1987 (1) KLT SN 69 p.50.

be caused if the act is done by the doer in good faith and for the benefit of the consenting

person. This Section provides protection to doctors and surgeons.

In Emperor v. Surajbali, the accused in good faith for the benefit of his patient,

operated the eye of the patient, for cataract. As a result, the patient lost the sight of her left

eye. It was held that the act of the accused was not an offence.

Section 89 protects harm caused to a person below twelve years of age or of unsound

mind by his guardian himself or by another person with the guardian’s consent. The act

must be done in good faith for the benefit of the child or the person of unsound mind. The

consent may express or implied.

Even though the term consent is not defined in the Code, what is not consent is stated

in Section 90. Consent is defined under the Indian Contract Act 1872 as follows, “two or

more persons are said to consent when they agree upon the same thing in the same sense.”

As per Section 90, consent is not consent, if it is given-

1) Under fear of injury or under a misconception of fact and the person doing the act,

knows or has reason to believe that the consent was given under either of these two

circumstances; or

2) By a person of unsound mind or by a drunken person, provided he is unable to

understand the nature and consequences of that to which he consents; or

3) By a person under twelve years of age. Consent, under this Section should be free. It

should not be vitiated by coercion, fraud or misrepresentation.

In Darsath Paswan v. State of Bihar,

the husband was in utter distress and he wanted

to commit suicide. His wife asked him to kill her first and then to commit suicide.

Accordingly he killed her but was caught before he could kill himself. It was held that the

consent of the wife was a free consent within the meaning of Exception 5 to S.300 of the

Code.

In another case Queen v. Poona’s Fathemah, consent was given under misconception

of fact. The accused a snake charmer compelled the deceased to allow to be bitten by a

poisonous snake. More over the accused induced them to believe that he had power to

AIR 1958.

protect them from harm caused by snake. The deceased allowed to be bitten by the snake,

believing the words of the accused. But the accused could not save the life and was

convicted.

Section 91 is an exception to Section 87, 88 and 89. Section 92 and 93 deal with

constructive consent. Due to certain urgent reasons, it may be difficult to get the consent in

time. For Eg, a surgeon sees a child suffering from an accident which is likely to prove fatal

unless an operation is immediately performed. There is no time to apply to the child’s

guardian. A performs the operation intending in good faith the child’s benefit. A has

committed no offence.

By virtue of Section 93 of the Code no communication made in good faith is an

offence by reason of any harm to the person to whom it is made, if it is made for the benefit

of that person.

Compulsion

Section 94 lays down the principle that a person, compelled by force or threat of force

to do any act, should not be punished. A person is excused from the consequences of any

act except murder and offences against the state punishable with death, done under the fear

of instant death. Fear of grievous hurt or hurt is not an excuse. The fear of death must be to

the offender himself and to nobody else.

In R v. Ismailhasan, it was held that if a man voluntarily joins a society in which he is

subsequently the victim of coercion he cannot avail the benefit of this Section.

Trifles

Section 95 deals with act causing slight harm. This Section is based on the maxim

‘de minimis non curat lex’ which means law does not take account of trifles. i.e., the law

does not punish an act which caused only a slight harm. If the harm caused is so slight no

man of ordinary sense and temper would complain of it. Harm means hurt injury, damage

etc., whether an act is trivial or not depends upon the nature of the injury, the intention or

knowledge of the accused etc.

In Kripa Singh v. Emperor, a person killed a goat by the jhatka process and exposed

its flesh for sale in the presence of Mohammedans with the intention to cause harm and

insult to some Mohammedans. It was held that the harm was so slight and hence protected

under this section.

In another case Kishore Mohan v. State of Bihar

, the accused put a garland of shoes

around the neck of a person. It was held that the act was not trivial in nature.

Right of Private Defence (Sec.96-106)

Every person has the right to defend his life, liberty and property. In other words

every person has got the right to help himself. In India, the right of private defence has been

given a wider scope, considering the peculiar state of society. When compared to English

law of private defence Indian law is wider in scope. Difference between the two is, in India

one can extend his right of private defence even for the protection of life and property of

strangers, which is not available in English law.

Section 96 to 106 of the Code deal with the right of private defence. The law of

private defence is found on two principles. They are;

1) Every one has the right to defend one’s own body and property and also the right to

defend others body and property at the time of immediate necessity.

2) The right cannot be used for causing harm to another person. The right of private

defense is available to a person who is in immediate necessity. This right should not be

used to seek revenge. In other words “the right of private defence can be used as a shield

and not as a sword.”

In State of Punjab v. Karnail Singh

, the Supreme Court held that the evidence

revealed that out of the three deceased, two were fired from a close range and the third was

shot in the back, showing that he was feeling. The accused’s plea of self-defence was

rejected and he was convicted and sentenced to life imprisonment.

Section 96 lays down that nothing is an offence which is done in the exercise of the

right of private defence. This Section does not define the right of private defence but

AIR1976 Cr. L J 654.

AIR 1995 SC 1970.

simply declares the right. This right is available against the person or persons from whom

imminent danger to life or property is apprehended.

Section 97 provides that the right of private defence is available to defend person as

well as property. The right consists of defending the body or property of the person

exercised in the case of any offences in relation to property. Property includes movable as

well as immovable property of himself or of any other person.

The right provided under Section 97 can be exercised subject to the restrictions

provided in Section 99. Right of private defence does not extend to the infliction of more

harm than that is necessary. Similarly it is not available to a person who has first started the

attack. In order to determine whether the accused acted in exercise of the right of private

defence, it is necessary to find who started the assault first. If a person is held to be the

aggressor, no right of private defence is available to him. In the case of the free fight also

there is no right of private defence. Free fight means a sudden fight. If two persons collect

together at a place and suddenly some dispute arises, and one person attacks the other that

can be called as a free fight or sudden fight and in such circumstances there is no right of

private defence.

As per Section 98 the right of private defence is not affected by the fact that the

threatened act does not constitute an offence technically because of the agent’s youth, want

of maturity of understanding. Unsoundness of mind, or misconception. For eg., if a drunken

person attacks either the person or property of another, any person is entitled to exercise the

right of private defence. The only limitation is that more than what is necessary should not

be inflicted.

Section 99 states the circumstances in which there is no right of private defence. In

other words, the limits of the right of private defence are stated in Section 99. The first two

clauses of this Section state that there is no right of private defence against an act done, or

attempted to be done, by or by the direction of public servant. The public servant must have

done the act in good faith under the colour of his office, even though that act may not be

justifiable by law.

In Dhara Singh v. Emperor

, the police entered a house at night to arrest the accused.

The accused did not know who they were, and he fired at them. It was held that the accused

had a right of private defence because he was not aware that he was a public servant.

If public servant has a different uniform his position would be known to others and in

such circumstance there is no right of private defence. Like public servants, those who are

acting under the direction of a public servant are also protected. The private person who is

acting under the direction of a public servant must state his authority. Third clause lays

down that there is no right of private defence if there is time to have recourse to the

protection of public authorities. As per the fourth clause more harm than what is necessary

should not be inflicted while exercising the right of private defence. There is no hard and

fast rule which determines the amount of harm which can be caused.

Section 100 provides the circumstances in which the right of private defence may go

to the extend of causing of death. This right arises only if an offence against the human

body is committed, attempted or threatened. The right can be exercised subject to the

restrictions provided under Section 99.

In Balbir Singh v. State

, it was held that before the life of a person can be taken on

the plea of private defence the following four conditions must be satisfied:

1) The accused must be free from fault in bringing about the encounter;

2) There must be present an impending peril to life or of great bodily harm, either real or

so apparent as to create honest belief of an existing necessity;

3) There must be no safe or reasonable mode of escape by retreat; and

4) There must have been a necessity for taking life.

As per Section 100 death can be caused under the following cases;

1) assault which causes fear of death;(S.302)

2) assault which causes fear of grievous hurt;(S.320)

3) assault with intent to commit rape;(S.375)

AIR 1947.

AIR 1959.

In Yeshwant Rao v. State of M.P.

, the minor daughter of the accused had gone to the

toilet on the rear side of the house. The deceased gripped her and had sexual intercourse

with her. The accused seeing his minor girl being raped by the deceased, hit the deceased

with a spade. The deceased on trying to flee also fell and hit himself. He died due to injury

of the liver. The prosecution case was that the minor girl had consented to the sexual

intercourse. The Supreme Court held that since the girl was a minor, the question of

‘consent’ does not arise and the act of the deceased would amount to committing rape

under S. 376, IPC, and hence, the father in defence of the body of his daughter was justified

in exercising his right of private defence. The accused was aquitted.

4) assault with intent to commit unnatural offence(S.377)

5) assault with the intention of kidnapping or abduction (S.359,362)

6) assault with the intention of wrongful confinement.(S.340)

S. 103 provides that the circumstances in which death can be caused while defending

the property. Here also the right can be exercised subject to the restrictions provided under

Section 99. The offences states in Section 103 are:

1) robbery;(S.390)

2) house breaking by night;(S.446)

3) mischief by fire on any building, tent or vessel used as a place for the custody of

property;(S.436)

4) Theft, mischief or house-trespass reasonably causing apprehension by death or

grievous hurt.(Ss. 378,425,442)

In Viswanath v. State of U.P.

, the appellant’s sister was being abducted by her

husband from her father’s house. The husband compelled her by force to accompany him

even though she was not willing. She was also assaulted by her husband. The appellant

prevented the husband from abducting his sister by causing his death. It was held that he

had the right of private defence of the body of his sister.

AIR 1992 SC 1683; 1992 Cri L J 2779.

V Suresh & D. Nagasaila, P S A Pillai’s Criminal LAw (2000), p. 169 & 170.

AIR 1960 SC 67.

In Shriram v. State of M.P

, it was held that the injuries received by the accused, the

imminence of threat to his safety, the injuries caused by the accused and the circumstances

whether the accused had the time to recourse to public authorities are all relevant factors to

be considered, while determining whether the right of private defense is available or not.

In James Martin v. State of Kerala

, it was held that in order to find whether right of

private defence is available or not, the injuries received by the accused, the imminence of

threat to his safety, the injuries caused by the accused and the circumstances like whether

the accused had time to recourse to public authorities are all relevant factors to be

considered.

In Kelu Kurup v. State

, it was held that right of private defence is not available when

the accused had a weapon and the deceased was unarmed and the accused inflicted several

injuries on the deceased.

In another case Public prosecutor v. Semalai Pannadi

, the deceased was wrongfully

diverting water. The accused intercepted and there was exchange of hot words between the

two. The accused was holding a spade in his hand and he hit the deceased on his head and

the deceased died on the spot. It was held that the act of the deceased amounted to mischief

and the accused had the right of private defence. But here the accused exceeded the limit

and was convicted under Section 304 of I.P.C.

In Gurudatta Mat v. Uttar Pradesh

, the deceased had title to a plot, and the appellant

had cultivatory possession of it. The deceased with a few police constables and labourers

went to the field and were harvesting the crops. The accused with 25 persons came there

with guns, spears and lathis and shot dead three persons and injured others. It was held that

the accused had no right of private defence of property to cause death.

Sections 101 and 104 provide that any harm other than death can be caused if the

offence is not one coming under Sections 100 or 103. Commencement and continuance of

the right of private defence is stated in Sections 102 and 105. The right of private defence

commences as soon as a reasonable apprehension of danger to the body arises from an

2004 (9) SCC 292.

2004 (1) KLT 513.

ILR 2004 (3) Ker. 534.

AIR 1960.

AIR 1965 SC 257.

attempt, or threat to commit the offence, even thought the offence might not have been

committed. The right continues so long as the apprehension of danger to the body

continues. In the case of defence of person a mere threat is sufficient. But in the case of an

attack on property there must be something more than a mere threat and it must be a threat

which is so imminent as to amount to an attempt to commit the offence, S. 106 provides the

right of private defence against a deadly assault when there is risk of harm to innocent

person. If a man is being assaulted in such a manner that he reasonably apprehends death,

and nothing else, he can defend himself even at the cost of harm to an innocent person.

In Dhawan Toli v. State

, A and his friend B jointly caused grievous hurt on a

trespasser who trespassed into A's house to have illicit intercourse with his wife. The Court

held that none of them committed any offence.

TOPIC 9

ABETMENT

When more than one accused are there in a crime their respective participation usually

varies. All of them cannot be punished equally. For considering their liability, in English

law the participants in a crime are classified into four classes; Principal in the first degree,

Principal in the second degree, Accessory before the fact and Accessory after the fact.

1. Principal in the First Degree

A principal in the first degree is the person who actually perpetrates the commission

of the offence. Where A makes a child under 7 years of age to take a chain of B, the child is

not guilty as it is an innocent agent, but A will be guilty of the felony as principal in the

first degree. Similarly if an individual sets a ferocious dog upon another he will be guilty of

assaulting as principal in the first degree.

2. Principal in the Second Degree

A person who aids or abets the commission of an offence is known as the principal in

the second degree. If a woman goes through a marriage with a man whom she knows to be

a married person, she aids or abets the commission of the offence of bigamy. A person who

1873(20) WR Cr. 36

aids the offence of robbery by a signal on a distant hill is a principal in the second degree.

There must be direct connection between the actor and the crime. Thus principal in the

second degree is a person who being present at the commission of the crime aids and assists

in its commission.

3. Accessory Before the Fact

He is the person who gives advice to the principal. He encourages the principal to

commit the crime.

Illustration

A hires B to poison C but B kills C by shooting him. A is accessory before the fact to

C’s murder even though the crime is not committed as he directed. However if the principal

does a thing of substantive difference the accessory is not liable for that.

Illustration

If A hires B to kill C but instead B rapes C’s wife for that A is not accessory before

the fact.

4. Accessory After the Fact

He is the person who assists a criminal with a view to save him. In other words one

who receives or protects or maintains a known criminal is an accessory after the fact. One

who enables a criminal after the commission of a crime to escape before arrest is also an

accessory after the fact.

Abetment

Abetment is dealt with in Sections 107 to 120. The term abetment is explained is

Section 107. A person is said to abet another to do a thing if he instigates him, or if he

intentionally aids by any act or illegal omission, the doing of that thing. The offence of

abetment can be committed by instigation, conspiracy or intentional aid, so abetment does

not mean simply instigation alone. Substantial assistance to the principal offender for the

commission of the offence or through some word or action which instigates the commission

of the offence also constitutes the offence of abetment. To constitute the offence of

abetment, it is not necessary that the act abetted should be committed. In the case of

abetment by instigation or abetment by engaging in a conspiracy it is immaterial whether or

not the person instigated commits the offence, or the persons conspiring together actually

carry out the object of conspiracy.

Abetment by Instigation

The words instigate literally means to urge forward or to provoke or to incite. A

person is said to instigate another if his words provoke him or incite him to do an act. It is

not necessary that express and direct words should be used to indicate what exactly should

be done by the persons to whom directions are given. Mere gestures directing the other to

do an act will also amount to abetment by instigation. But it is necessary that the instigation

must have reference to the thing that was done and not to the thing that was likely to have

been done by the person who is instigated. A wilful misrepresentation of a fact amounts to

an abetment of an act as per the first explanation.

Abetment by Conspiracy

To constitute abetment by conspiracy, two or more persons must conspire and one of

them must be the person abetting. Firstly there must be at least two persons. Secondly there

must be an overt act or illegal omission in furtherance of the conspiracy. Mere intention is

not punishable.

Abetment by Aiding

Helping the actual offender in the commission of the offence is known as abetment by

aiding. The aiding should be intentional aiding. Mere giving of an aid will not make the act

an abetment of an offence, if the person giving the aid does not know that an offence is

being committed. The intention should be to help the commission of the offence or to

facilitate the commission of an offence. As per the second explanation the commission of

the offence must be facilitated by some act. For example, a priest, who officiates at the

bigamous marriage was held to have intentionally aided in the commission of a marriage

prohibited by law.

TOPIC 10

CRIMINAL CONSPIRACY

In the original Penal Code the offence of original conspiracy was dealt along with the

offence of abetment in Section 107. By Section 3 of the Criminal Law Amendment Act of

1913 now Chapter VA contains only two sections- S. 120A and S. 120B.

S. 120 A defines the offence of criminal conspiracy. It is defined as an agreement by

two or more persons to do an illegal act or a legal act by illegal means. In the proviso it is

stated that no agreement except an agreement to commit an offence shall amount to a

criminal conspiracy unless some act besides the agreement is done by one or more parties

to such agreement. The explanation to the Section states that it is immaterial whether the

illegal act is the ultimate object of such agreement or is merely incidental to that object.

The essential ingredients are:

1. There must be two or more persons;

2. They must make an agreement ;

3. The agreement must be to do an illegal act or a legal act by illegal means;

4. In cases, other than an agreement to commit an offence, the agreement must be

followed by an overt act.

A conspiracy is not an act committed. The offence of conspiracy is completed even

though the conspired or the agreed offence is not committed. Here a mere agreement to

commit is an offence. This offence is distinct from the offence of abetment stated under

Section 107. The offence of conspiracy will become an abetment by conspiracy if the

agreed offence has been committed. In other words if the offence alleged to be the object of

the conspiracy, has been committed the conspiracy amounts to an offence under Section

107.

Intention to commit an offence is not a crime. Because the state of mind of a person

cannot be known. When the intention is followed by some act, then it can be called as a

crime. But in the case of criminal conspiracy, the overt act is the agreement between the

parties. Agreement is the gist of the offence. Agreement is not a mere intention, but

announcement and acceptance of intention by the parties. The agreement can be inferred

from the circumstances.

In Hiralal Jain v. Delhi Administration

, the accused an advocate identifies certain

persons as claimants in land acquisition compensation proceedings and believing their

statements to be true agreed to represent them in such proceedings. The claimants were

discovered to have made fraudulent claims and the accused was charged of criminal

conspiracy. However no documentary or other evidence was produced to show that there

was a meeting between the advocate and his clients. Hence the court found him not guilty

of the offence of criminal conspiracy.

In Hussain Umar v. Dalipainghji

, the Supreme Court held that the offence of

Criminal conspiracy is an agreement by two or more persons to do an illegal act or to do a

legal act by illegal means. The agreement is the gist of the offence.

In State v. V.C Shukla and others

, it was held that to prove a criminal conspiracy

under S.120B there must be direct or circumstantial evidence to show that there was an

agreement between two or more person to commit an offence.

Punishment (S. 120 B)

If a person is a party to a criminal conspiracy to commit an offence punishable with

death, imprisonment for life or rigorous imprisonment for a term of two years or upwards,

he shall be punished in the same manner as if he had abetted such offence.

If a person is a party to a criminal conspiracy to commit an offence punishable with

imprisonment for a term below two years or with fine or with both, he shall be punished

with imprisonment for a term not exceeding six months or with fine or with both.

In Joseph v. S 1 of Police Munnar

, it was held that the evidence of a person over

hearing a conversation is too weak an evidence to prove conspiracy.

In Esher Singh v. State of A.P

, it was held that where the agreement is for

accomplishment of an act which by itself constitutes an offence, and then in that event no

AIR 1972.

AIR 1970 SC 45.

AIR 1980 SC 1382.

2005 (2) KLT 269.

2004 (2) KLT SN 23.

overt act is necessary to be proved by the prosecution because in such a situation, criminal

conspiracy is established by proving such agreement.

Distinction between S. 120 and S. 34

In the case of criminal conspiracy the gist of the offence is the bare agreement to

break the law, even though the illegal act does not follow. Under Section 34 it is the

commission of a criminal act in furtherance of a common intention of all the offenders. In

other words in pursuance of the agreement some overt act must be done by any one of the

offenders, for which all others are constructively liable. S 34 enunciates only a principle of

liability and it is not an offence in itself. But Section 120 A is by itself a substantive

offence. Section 34 requires not only common intention, but also participation in the crime

whereas Section 120A requires only as engagement or agreement.

TOPIC 4

OFFENCES AGAINST THE STATE

(Ss. 121-130)

Chapter VI of IPC deals with the offences against the State and they are,

1. Waging, or attempting to wage war, or abetting waging of war, against the

Government of India;

2. Conspiracy to commit offences punishable by Section 121;

3. Collecting arms etc., with intention of waging war against the Government of India;

4. Concealing with intent to facilitate design to wage war;

5. Assaulting President, Governor, etc., with intent to compel or restrain the exercise of

any lawful power;

6. Sedition;

7. Waging war against any Asiatic Power in alliance with the Government of India;

8. Committing depredation on territories of Power at peace with the Government of

India;

9. Receiving Property taken by war on depredation mention in Sections 125 and 126;

10. Public servant voluntary allowing prisoner of State or war to escape;

11 Public servant negligently suffering such prisoner to escape;

12. Aiding escape of, rescuing or harbouring such prisoner.

Waging war, against the Government of India

Waging war means taking part in an armed violent revolt, revolution or open rebellion

against authority. By virtue of S. 121 whoever wages war against the Government of India,

or attempts to wage such war, or abets the waging of such war, shall be punished with

death, or imprisonment for life and shall also be liable to fine.

Exceptional Characteristics of Offences under S.121

1. No need of specific number of offenders

2. The way in which offenders are armed is not material

3. The object of such an act must be to attain by force and violence an object of a general

public nature, and thus to interfere the Government’s authority.

4. There is no difference between the actual offender and abetter

Illustration

A joins an insurrection against the Government of India. A has committed the offence

defined in this Section.

By virtue of 121A whoever conspires to commit any of the offences punishable by

Section 121 or conspires to overawe, by means of criminal force or the show of criminal

force, the Central Government or any State Government, shall be punished with

imprisonment for life, or with imprisonment of either description which may extend to ten

years, and shall also be liable to fine.

Explanation for 121A says that to constitute a conspiracy under this Section, it is not

necessary that any act or illegal omission shall take place in pursuance thereof.

S. 122 prescribe punishment for preparing to wage war against the Government of

India. Section reads as follows whoever collects men, arms or ammunition or otherwise

prepares to wage war with the intention of either waging or being prepared to wage war

against the Government of India, shall be punished with imprisonment for life or

imprisonment of either description for a term not exceeding ten years, and shall also be

liable to fine.

Further S.123 provides that whoever concealing with intent to facilitate design to

wage war shall be punished with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.

Assaulting President, Governor, etc., with Intent to Compel or Restrain the Exercise of any

Lawful Power

By virtue of S. 124 whoever, with the intention of including or compelling the

President of India, or the Governor of any State, to exercise or refrain or assaults or

wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of criminal

force or the show of criminal force, or attempts so to overawe, such President or Governor,

shall be punished with imprisonment of either description for a term which may extend to

seven years, and shall also be liable to fine.

Sedition

Sedition generally means defamation of the State. According to English law sedition

is a crime against the society, nearly allied to betray one’s country. By virtue of 124A

whoever, by words, either spoken or written, or by signs, or by visible representation, or

otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to

excite disaffection towards the Government established by law in India, shall be punished

with imprisonment for life, to which fine may be added, or with imprisonment which may

extend to three years, to which fine may be added, or with fine.

Explanation 1 of Section 124A explicates that the expression “disaffection” includes

disloyalty and all feelings of enmity.

Waging War Against any Asiatic Power in Alliance with the Government of India

By virtue of 125 whoever wages war against the Government of any Asiatic Power in

alliance or at peace with the Government of India or attempts to wage such war, or abets

the waging of such war, shall be punished with imprisonment for life, to which fine may be

added, or with imprisonment of either description for a term which may extend to seven

years, to which fine may be added, or with fine.

Committing Damaging Act on Territories of Power at Peace with the Government of India

By virtue of S. 126 whoever commits depredation, or makes preparation to commit

depredation, on the territories of any Power in alliance or at peace with the Government of

India, shall be punished with imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine and to forfeiture of any property used

or intended to be used in committing such depredation, or acquired by such depredation.

Receiving Property taken by War on Depredation Mention in Sections 125 and 126

By virtue of S. 127whoever receives any property knowing the same to have been

taken in the in the commission of any of the offences mentioned in Sections 125 and 126,

shall be punished with imprisonment of either description for a term which may extend to

seven years, and shall also be liable to fine and to forfeiture of the property so received.

Public Servant Voluntary Allowing Prisoner of State or War to Escape

By virtue of S. 128 whoever, being a public servant and having the custody of any

State prisoner or prisoner of war, voluntarily allows such prisoner to escape from any place

in which such prisoner is confined, shall be punished with imprisonment for life, or

imprisonment of either description for a term which may extend to ten years, and shall also

be liable to fine.

Public Servant Negligently Suffering such Prisoner to Escape

By virtue of S.129 whoever, being a public servant and having the custody of any

State prisoner or prisoner of war, negligently suffers such prisoner to escape from any place

of confinement in which such prisoner is confined, shall be punished with simple

imprisonment for a term which may extend to three years, and shall also be liable to fine.

Aiding Escape of, Rescuing or Harbouring such Prisoner

By virtue of S. 130 whoever knowingly aids or assists any State prisoner or prisoner

of war in escaping from lawful custody, or rescues or attempts to rescue any such prisoner,

or harbours or conceals any such prisoner who has escaped from lawful custody, or offers

or attempts to offer any resistance to the recapture of such prisoner, shall be punished with

imprisonment for life or with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.

TOPIC 12

OFFENCES RELATING TO THE ARMY, NAVY

AND AIR FORCE

(Ss.131-140)

Following are the offences relating to the Army, Navy and the Air Force

1. Abetting Mutiny or Attempting to Seduce a Soldier, Sailor or Airman from His Duty

By virtue of S. 131 whoever abets the committing of mutiny by an officer, soldier,

sailor or airman, in the Army, Navy or Air Force of the Government of India or attempts to

seduce any such officer, soldier, sailor or airman from his allegiance or his duty, shall be

punished with imprisonment for life, or with imprisonment of either description for a term

which may extend to ten years, and shall also be liable to fine.

2. Abetment of Mutiny, if Mutiny is Committed in Consequence thereof

By virtue of S. 132 whoever abets the committing of mutiny by an officer, soldier,

sailor or airman in the Army, Navy or Air Force of the Government of India, shall, if

mutiny be committed in consequence of that abetment, be punished with death or with

imprisonment for life, or imprisonment of either description for a term which may extend to

ten years, and shall also be liable to fine.

3. Abetment of Assault by Soldier, Sailor or Airman on his Superior Officer, When in

Execution of His Office

By virtue of S. 133 whoever abets an assault by an officer, soldier, sailor or airman, in

the Army, Navy or Air force of the Government of India, on any superior officer being in

the execution of his office, shall be punished with imprisonment of either description for a

term which may extend to three years, and shall also be liable to fine.

4. Abetment of Such Assault, if the Assault is Committed

By virtue of S. 134 whoever abets an assault by an officer, soldier, sailor, or airman,

in the Army, Navy or Air force of the Government of India, on any superior officer being in

the execution of his office, shall, if such assault be committed in consequence of that

abetment be punished with imprisonment of either description for a term which may extend

to seven years, and shall also be liable to fine.

5. Abetment of Desertion of Soldier, Sailor or Airman

By virtue of S. 135 whoever abets the desertion of any officer, soldier, sailor or

airman, in the Army, Navy or Air Force of the Government of India, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine,

or with both.

6. Harbouring Deserter

By virtue of S. 136 whoever, except as hereinafter expected, knowing or having

reason to believe that an officer, soldier, sailor or airman, in the Army, Navy or Air force of

the Government of India, has deserted, harbours such officer, soldier, sailor or airman shall

be punished with imprisonment of either description for a term which may extend to two

years, or with fine, or with both. The S.136 does not extend to the case in which the

harbour is given by a wife to her husband.

7. Deserter Concealed on Board Merchant Vessel through Negligence of Master

By virtue of S. 137 the master or person in charge of a merchant vessel, on board of

which any deserter from the Army, Navy or Air force of the Government of India is

concealed, shall, though ignorant of such concealment, be liable to a penalty not exceeding

five hundred rupees, if he might have known of such concealment but for some neglect of

his duty as such master or person in charge, or but for some want of discipline on board of

the vessel.

8. Abetment of Act of Insubordination by Soldier, Sailor or Airman

By virtue of S. 138 whoever abets what he knows to be an act of insubordination by

an officer, soldier, sailor or airman, in the Army, Navy or Air Force of the Government of

India, shall, if such act of insubordination be committed in consequence of that abetment,

be punished with imprisonment of either description for a term which may extend to six

months, or with fine, or with both.

9. Persons Subject to Certain Acts

By virtue of S. 139 no person subject to the Army Act 1950, the Indian Navy

(Discipline) Act, 1934, the Air Force Act 1950 is subject to punishment under this Code for

any of the offences defined in this Chapter

10. Wearing Garb or Carrying Token Used by Soldier, Sailor or Airman

By virtue of S. 140 whoever, not being a soldier, sailor or airman in the Military,

Naval or Air service of the Government of India, wears any garb or carries any token

resembling any garb or token used by such a soldier, sailor or airman with the intention that

it may be believed that he is such a soldier, sailor or airman, shall be punished with

imprisonment of either description for a term which may extend to three months, or with

fine which may extend to five hundred rupees, or with both

TOPIC 13

OFFENCES AGAINST THE PUBLIC

TRANQUILITY

(Ss. 141-160)

Following are the offences affecting Public Tranquility

1. Unlawful assembly

2. Rioting

3. Promoting enmity between classes

4. Affray

1. Unlawful Assembly

By virtue of S.141 an unlawful assembly means, an assembly of five or more persons

and having common object of the persons composing that assembly and such an assembly

is meant to,

1. To overawe by criminal force, or show of criminal force, the Central or any State

Government of Parliament or the Legislature of any State, or any public servant in the

exercise of the lawful power of such public servant; or

2. To resist the execution of any law, or of any legal process; or

3. To commit any mischief or criminal trespass, or other offence; or

4. By means of criminal force, or show of criminal force, to any person, to take or obtain

possession of any property, or to deprive any person of the enjoyment of a right of

way, or of the use of water or other incorporeal right of which he is in possession or

enjoyment, or to enforce any right or supposed right; or

5. By means of criminal force, or show of criminal force, to compel any person to do

what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Further an assembly which was not unlawful when it assembled, may subsequently

become an unlawful assembly.

By virtue of S.142 whoever, being aware of facts which render any assembly an

unlawful assembly, intentionally joins that assembly, or continues in it is said to be a

member of an unlawful assembly.

Section 143 provides punishment for unlawful assembly. By virtue of S.143 whoever

is a member of an unlawful assembly, shall be punished with imprisonment of either

description for a term which may extend to six month, or with fine, or with both.

By virtue of S.144 whoever, being armed with any deadly weapon, or with anything

which, used as a weapon of offence, is likely to cause death, is a member of an unlawful

assembly, shall be punished with imprisonment of either description for a term which may

extend to two years, or with fine, or with both.

By virtue of S.145 whoever joins or continues in an unlawful assembly, knowing that

such unlawful assembly has been commanded in the manner prescribed by law to disperse,

shall be punished with imprisonment of either description for a term which may extend to

two years, or with fine, or with both.

S.149 provides that if an offence is committed by any member of an unlawful

assembly in prosecution of the common object of that assembly, or such as the members or

that assembly knew to be likely to be committed in prosecution of that object, every person

who, at the time of the committing of that offence, is a member of the same assembly, is

guilty of that offence.

In Bhargavan v. State of Kerala

, it was held that mere present in an unlawful

assembly cannot render a person liable unless there was a common object and he was

actuated by that common object and that common object is one of those set out in S.141.

In Dani Singh v. State of Bihar

, it was held that if large crowd of persons armed

with weapons assaults the intended victims, it may not be necessary that all of them have to

take part in the assault.

2. Rioting

By virtue of S.146 whenever force or violence is used by an unlawful assembly, or by

any member thereof, in prosecution of the common object of such assembly, every member

of such assembly is guilty of the offence of rioting.S.147 provides for the punishment for

rioting. S. 147 reads as follows, whoever is guilty of rioting shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine,

or with both.

Rioting, armed with deadly weapon

According to S. 148 whoever is guilty of rioting, being armed with a deadly weapon

or with anything which, used as a weapon of offence, is likely to cause death, shall

be punished with imprisonment of either description for a term which may extend to

three years, or with fine, or with both.

In State of Madhya Pradesh v. Bhagwan Singh

, the court held that, where the

presence of injured eye witnesses at the place of occurrence was undoubtful and their

evidence corroborated by medical supported by prompt FIR against all 16 accused, merely

non- explanation of injuries sustained by accused persons by these witnesses is not fatal

prosecution and as such common object of unlawful assembly to cause death is established.

2004 (1) KLT 201.

2004 (3) KLT SN 154.

2000 Cr. L J 123 (MP).

In Yunis alias Kariya v. State of Madhya Pradesh

, the court held that, when the

charge is under section 149, the presence of the accused as part of unlawful assembly is

sufficient for conviction even if no overt act is imputed to him.

In Ramashish v. State of Bihar

, the court observed that, conviction by taking recourse to

S. 149 cannot be made out unless five specified objects enumerated in section 141 are not

proved.

By virtue of S.152 whoever assaults or threatens to assault, or obstructs or attempts to

obstruct, any public servant in the discharge of his duty as such public servant, in

endeavouring to disperse an unlawful assembly, or to suppress a riot or affray, or uses, or

threatens, or attempts to use criminal force to such public servant, shall be punishable with

imprisonment of either description for a term which may extend to three years, or with fine,

or with both.

By virtue of S.153 whoever malignantly, or wantonly, by doing anything which is

illegal, gives provocation to any person intending of knowing it to be likely that such

provocation will cause the offence of rioting to be committed, shall, if the offence of rioting

be committed in consequence of such provocation, be punished with imprisonment of either

description for a term which may extend to one year, or with fine, or with both ; and if the

offence of rioting be not committed, imprisonment of either description for a term which

may extend to six months, or with fine, or with both.

3. Promoting Enmity between Different Classes

S.153A can be regarded as a supplement to the law of sedition. By virtue of S.153 A

(1) whoever promotes or attempts to promote disharmony or feelings of enmity, hatred or

ill-will between different religious, racial, language or regional groups or castes or

communities or Commits any act which is prejudicial to the maintenance of harmony

between different religious, racial, language or regional groups or castes or communities,

and which disturbs or is likely to disturb the public tranquility, shall be punished with

imprisonment which may extend to three years, or with fine, or with both.

4. Affray

AIR 2003 SC 539.

1999 (6) JT 560: 1999 (2) JCC (SC) 471.

By virtue of S.159 when two or more persons, by fighting in a public place, disturb

the public peace, they are said to “commit an affray”.

S.160 provides that whoever commits an affray, shall be punished with imprisonment

of either description for a term which may extend to one month, or with fine which may

extend to one hundred rupees, or with both.

TOPIC 14

OFFENCES BY OR RELATING TO PUBLIC SERVANTS

(Ss.166-170)

1. Public Servant Disobeying Law, with Intent to Cause Injury to any Person

By virtue of S.166 whoever, being a public servant, knowingly disobeys any direction

of the law as to the way in which he is to conduct himself as such public servant, intending

to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any

person, shall be punished with simple imprisonment for a term which may extend to one

year, or with fine, or with both.

Illustration

A, being an officer directed by law to take property in execution, in order to satisfy a

decree pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of

law, with the knowledge that he is likely thereby to cause injury to Z. A has committed the

offence defined in this Section.

2. Public Servant Framing an Incorrect Document with Intent to Cause Injury

By virtue of S.167 whoever, being a public servant, and being, as such public servant,

charged with the preparation or translation of any document, frames or translates that

document in a manner which he knows or believes to be incorrect, intending thereby to

cause or knowing it to be likely that he may thereby cause injury to any person, shall be

punished with imprisonment of either description for a term which may extend to three

years, or with fine, or with both.

3. Public Servant Unlawfully Engaging in Trade

By virtue of S.168 whoever, being a public servant, and being legally bound as such

public servant not to engage in trade, engages in trade, shall be punished with simple

imprisonment for a term which may extend to one year, or with fine, or with both.

4. Public Servant Unlawfully Buying or Bidding for Property

By virtue of S.169 whoever, being a public servant, and being legally bound as such

public servant, not to purchase or bid for certain property, purchases or bids for that

property, either in his own name or in the name of another, or jointly, or in shares with

others, shall be punished with simple imprisonment for a term which may extend to two

years, or with fine, or with both; and the property, if purchased, shall be confiscated.

5. Personating a Public Servant

By virtue of S.170 whoever, pretends to hold any particular office as a public servant,

knowing that he does not hold such office or falsely personates any other person holding

such office, and in such assumed character does or attempts to do any act under colour of

such office, shall be punished with imprisonment of either description for a term which

may extend to two years, or with fine, or with both.

6. Wearing Grab or Carrying Token Used by Public Servant with Fraudulent Intent

By virtue of S.171 whoever, not belonging to a certain class of public servants, wear

any grab or carries any token resembling any grab or token used by that class of public

servants, with the intention that it may be believed, or with the knowledge that it is likely to

be believed, that he belongs to that class of public servants, shall be punished with

imprisonment of either description for a term which may extend to three months, or with

fine which may extend to two hundred rupees, or with both.

TOPIC 8

ILLEGAL GRATIFICATION AND CORRUPTIO

(S.171)

Chapter 24 of the Code deals with the offences relating to Elections

1. Bribery

By virtue of S.171B (1) whoever—

(i) Gives a gratification to any person with the object of inducing him or any other person

to exercise any electoral right or of rewarding any person for having exercised any such

right; or

(ii) Accepts either for himself or for any other person any gratification as a reward for

exercising any such right or for inducing or attempting to induce any other person to

exercise any such right commits the offence of bribery, provided that a declaration of

public policy or a promise of public action shall not be an offence under this Section.

By virtue of S.171B (2) a person who offers, or agrees to give, or offers or attempts to

procure, a gratification shall be deemed to give a gratification.

By virtue of S.171B (3) a person who obtains or agrees to accept or attempts to obtain

a gratification shall be deemed to accept a gratification, and a person who accepts a

gratification as a motive for doing what he does not intend to do, or as a reward for doing

what he has not done, shall be deemed to have accepted the gratification as a reward.

2. Undue Influence at Elections

By virtue of S.171C (1) whoever voluntarily interferes or attempts to interfere with

the free exercise of any electoral right commits the offence of undue influence at an

election.

By virtue of S.171C (2) without prejudice to the generality of the provisions of sub-

Section (1), whoever—

(a) Threatens any candidate or voter, or any person in whom a candidate or voter is

interested, with injury of any kind, or

(b) Induces or attempts to induce a candidate or voter to believe that he or any person in

whom he is interested will become or will be rendered an object of Divine displeasure or of

spiritual censure,

shall be deemed to interfere with the free exercise of the electoral right of such

candidate or voter, within the meaning of sub-Section (1).

By virtue of S.171C (3) a declaration of public policy or a promise of public action or

the mere exercise of a legal right without intent to interfere with an electoral right shall not

be deemed to be interference within the meaning of this Section.

3. Personation at Elections

By virtue of S.171D whoever at an election applies for a voting paper or votes in the

name of any other person, whether living or dead, or in a fictitious name, or who having

voted once at such election applies at the same election for a voting paper in his own name,

and whoever abets, procures or attempts to procure the voting by any person in any such

way, commits the offence or personation at an election.

Punishment for Bribery

By virtue of S.171E whoever commits the offence of bribery shall be punished with

imprisonment of either description for a term which may be extend to one year, or with

fine, or with both, provided that bribery by treating shall be punished with fine only.

Explanation for S.171E says that “Treating” means that form of bribery where the

gratification consists in food, drink, entertainment, or provision.

S.171F provides that whoever commits the offence of undue influence of personation

at an election shall be punished with imprisonment of either description for a term which

may extend to one year or with fine, or with both.

4. False Statement in Connection with an Election

By virtue of S.171G whoever with intent to affect the result of an election makes or

publishes any statement purporting to be a statement of fact which is false and which he

either knows or believes to be false or does not believe to be true, in relation to the personal

character or conduct of any candidate shall be punished with fine.

5. Illegal Payments in Connection with an Election

By virtue of S.171H whoever without the general or special authority in writing of a

candidate incurs or authorizes expenses on account of the holding of any public meeting, or

upon any advertisement, circular or publication, or in any other way whatsoever for the

purpose of promoting or procuring the election of such candidate, shall be punished with

fine which may extend to five hundred rupees, provided that if any person having incurred

any such expenses not exceeding the amount of ten rupees without authority obtains within

ten days from the date on which such expenses were incurred the approval in writing of the

candidate, he shall be deemed to have incurred such expenses with the authority of the

candidate.

6. Failure to keep Election Accounts

By virtue of S.171I whoever being required by any law for the time being in force or

any rule having the force of law to keep accounts of expenses incurred at or in connection

with an election fails to keep such accounts shall be punished with fine which may extend

to five hundred rupees.

TOPIC 16

CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS

(Ss. 172-190)

1. Absconding to Avoid Service of Summons or other Proceeding

By virtue of S.172 whoever absconds in order to avoid being served with a summons,

notice or order, proceeding form any public servant legally competent, as such public

servant, to issue such summons, notice or order, shall be punished with simple

imprisonment for a term which may extend to one month, or with fine which may extend to

five hundred rupees, or with both or, if the summons or notice or order is to attend in

person or by agent, or to produce a document in a Court of Justice, with simple

imprisonment for a term which may extend to six months, or with fine which may extend to

one thousand rupees, or with both.

2. Preventing Service of Summons or other Proceeding, or Preventing Publication thereof

By virtue of S.173 whoever in any manner intentionally prevents the serving on

himself, or on any other person, of any summons, notice or order proceeding from any

public servant legally competent, as such public servant, to issue such summons, notice or

order, or intentionally prevents the lawful affixing to any place of any such summons,

notice or order, or intentionally removes any such summons, notice or order from any place

to which it is lawfully affixed, or intentionally prevents the lawful making of any

proclamation, under the authority of any public servant legally competent, as such public

servant, to direct such proclamation to be made, shall be punished with simple

imprisonment for a term which may extend to one month, or with fine which may extend to

five hundred rupees, or with both; or, if the summons, notice, order or proclamation is to

attend in person or by agent, or to produce a document in a Court of Justice, with simple

imprisonment for a term which may extend to six month, or with fine which may extend to

one thousand rupees or with both.

3. Non-Attendance in Obedience to an order form Public Servant

By virtue of S.174 whoever, being legally bound to attend in person or by an agent at

a certain place and time in obedience to a summons, notice, order or proclamation

proceeding from any public servant legally competent, as such public servant, to issue the

same, Intentionally omits to attend at that place of time, or departs form the place where he

is bound to attend before the time at which it is lawful for him to depart, shall be punished

with simple imprisonment for a term which may extend to one month, or with fine which

may extend to five hundred rupees, or with both; or, if the summons, notice, order of

proclamation is to attend in person or by agent in a Court of Justice, with simple

imprisonment for a term which may extend to six months, or with fine which may extend to

one thousand rupees, or with both.

Illustration

(a) A, being legally bound to appear before the High Court at Calcutta, in

obedience to a subpoena issuing from that Court, intentionally omits to appear. A has

committed the offence defined in this Section.

4. Omission to Produce Document to Public Servant by Person Legally Bound to Produce

By virtue of S.175 whoever, being legally bound to produce or deliver up any

document to any public servant, as such, intentionally omits so to produce or deliver up the

same, shall be punished with simple imprisonment for a term which may extend to one

month, or with fine which may extend to five hundred rupees, or with both; or, if the

document is to be produced or delivered up to a Court of Justice, with simple imprisonment

for a term which may extend to six months, or with fine which may extend to one thousand

rupees, or with both

Illustration

A, being legally bound to produce a document before a District Court, intentionally

omits to produce the same. A has committed the offence defined in this Section.

5. Omission to give Notice or Information to Public Servant by Person Legally bound to

give it

By virtue of S.176 whoever, being legally bound to give any notice or to furnish

information on any subject to any public servant, as such, intentionally omits to give such

notice or to furnish such information in the manner and at the time required by law, shall be

punished with simple imprisonment for a term which may extend to one month, or with

fine which may extend to five hundred rupees, or with both; or, if the notice or information

required to be given respects the commission of an offence, or is required for the purpose or

preventing the commission of an offence, or in order to the apprehension of an offender,

with simple imprisonment for a term which may extend to six month, or with fine which

may extend to one thousand rupees, or with both; or, if the notice or information required to

be given is required by an order passed under sub-Section (1) of Section 565 of the Code of

Criminal Procedure, 1898 with imprisonment of either description for a term which may

extend to six months, or with fine which may extend to one thousand rupees, or with both.

Explanation In Section 176 and in this Section the word “offence” includes any act

committed at any place out of India, would be punishable under any of the following

Sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436,

449, 450, 457, 458, 459 and 460; and the word “offender” includes any person who is

alleged to have been guilty of any such act.

6. Furnishing false Information

By virtue of S.177 whoever, being legally bound to furnish information on any subject

to any public servant, as such, furnishes, as true, information on the subject which he

knows or has reason to believe to be false, shall be punished with simple imprisonment for

a term which may extend to six months, or with fine which may extend to one thousand

rupees, or with both; or, if the information which he is legally bound to give respects the

commission of an offence, or is required for the purpose of preventing the commission of

an offence, or in order to the apprehension of an offender, with imprisonment of either

description for a term which may extend to two years, or with fine, or with both.

Illustrations

(a) A, a landholder, knowing of the commission of a murder within the limits of his

estate, wilfully misinforms the Magistrate of the district that the death has occurred by

accident in consequence of the bite of a snake. A is guilty of the offence defined in this

Section.

7. Refusing Oath or Affirmation when Duly Required by Public Servant to make it

By virtue of S.178 whoever refuses to bind himself by an oath or affirmation to state

the truth, when required so to bind himself by a public servant legally competent to require

that he shall so bind himself, shall be punished with simple imprisonment for a term which

may extend to six months, or with fine which may extend to one thousand rupees, or with

both.

8. Refusing to Answer Public Servant Authorized to Question

By virtue of S.179 whoever, being legally bound to state the truth on any subject to

any public servant, refuses to answer any question demanded of him touching that subject

by such public servant in the exercise of the legal powers of such public servant, shall be

punished with simple imprisonment for a term which may extend to six months, or with

fine which may extend to one thousand rupees, or with both.

9. Refusing to Sign Statement

By virtue of S.180 whoever refuses to sign any statement made by him, when required

to sign that statement by a public servant legally competent to require that he shall

sign that statement, shall be punished with simple imprisonment for a term which may

extend to three months, or with fine which may extend to five hundred rupees, or with both.

10. False Statement on Oath or Affirmation to Public Servant or Person Authorized to

Administer an Oath or Affirmation

By virtue of S.181 whoever, being legally bound by an oath or affirmation to state the

truth on any subject to any public servant or other person authorized by law to administer

such oath or affirmation, makes, to such public servant or other person as aforesaid,

touching the subject, any statement which is false, and which he either knows or believes to

be false or does not believe to be true, shall be punished with imprisonment of either

description for a term which may extend to three years, and shall also be liable to fine.

11. False Information, with Intent to cause Public Servant to use his Lawful Power to the

Injury of another Person

By virtue of S.182 whoever gives to any public servant any information which he

knows or believes to be false, intending thereby to cause, or knowing it to be likely that the

will thereby cause, such public servant

(a) To do or omit anything which such public servant ought not to do or omit if the true

state of facts respecting which such information is given were known by him, or

(b) To use the lawful power of such public servant to the injury or annoyance of any

person,

shall be punished with imprisonment of either description for a term which may

extend to six month, or with fine which may extend to one thousand rupees, or with both.

Illustration

(a) A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate,

has been guilty of neglect of duty or misconduct, knowing such information to be false, and

knowing it to be likely that the information will cause the Magistrate to dismiss Z. A has

committed the offence defined in this Section.

12. Resistance to the Taking of Property by the Lawful Authority of a Public Servant

By virtue of S.183 whoever offers any resistance to the taking of any property by the

lawful authority of any public servant, knowing or having reason to believe that he is such

public servant, shall be punished with imprisonment of either description for a term which

may extend to six months, or with fine which may extend to one thousand rupees, or with

both.

13. Obstructing Sale of Property Offered for Sale by Authority of Public Servant

By virtue of S.184 whoever intentionally obstructs any sale of property offered for

sale by the lawful authority of any public servant as such, shall be punished with

imprisonment of either description for a term which may extend to one month, or with fine

which may extend to five hundred rupees, or with both.

14. Illegal Purchase or Bid for Property Offered for Sale by Authority of Public Servant

By virtue of S.185 whoever, at any sale of property held by the lawful authority of a

public servant, as such, purchases or bids for any property on account of any person,

whether himself or any other, whom he knows to be under a legal incapacity to purchase

that property at that sale, or bids for such property not intending to perform the obligations

under which he lays himself by such bidding, shall be punished with imprisonment of either

description for a term which may extend to one month, or with fine which may extend to

two hundred rupees, or with both.

15. Obstructing Public Servant in Discharge of Public Functions

By virtue of S.186 whoever voluntarily obstructs any public servant in the discharge

of his public functions, shall be punished with imprisonment of either description for a term

which may extend to three months, or with fine which may extend to five hundred rupees,

or with both.

16. Omission to Assist Public Servant when Bound by Law to give Assistance

By virtue of S.187 whoever, being bound by law to render or furnish assistance to any

public servant in the execution of his public duty, intentionally omits to give such

assistance, shall be punished with simple imprisonment for a term which may extend to one

month, or with fine which may extend to two hundred rupees, or with both, And if such

assistance be demanded to him by a public servant legally competent to make such demand

for the purposes of executing any process lawfully issued by a Court of Justice, or of

preventing the commission of an offence, or of suppressing a riot, or affray, or of

apprehending a person charged with or guilty of an offence, or of having escaped from

lawful custody, shall be punished with simple imprisonment for a term which may extend

to six months, or with fine which may extend to five hundred rupees, or with both.

17. Disobedience to Order Duly Promulgated by Public Servant

By virtue of S.188 whoever, knowing that, by an order promulgated by a public

servant lawfully empowered to promulgate such order, he is directed to abstain from a

certain act, or to take certain order with certain property in his possession or under his

management, disobeys such direction, shall, if such disobedience causes to tender to cause

obstruction, annoyance or injury, or risk of obstruction, annoyance of injury, to any persons

lawfully employed, be punished with simple imprisonment for a term which may extend to

one month or with fine which may extend to two hundred rupees, or with both; and if such

disobedience causes or trends to cause danger to human life, health or safety, or causes or

tends to cause a riot or affray, shall be punished with imprisonment of either description for

a term which may extend to six months, or with fine which may extend to one thousand

rupees, or with both.

Illustration

An order is promulgated by a public servant lawfully empowered to promulgate such

order, directing that a religious procession shall not pass down a certain street. A

knowingly disobeys the order, and thereby causes danger of riot. A has committed the

offence defined in this Section.

18. Threat of Injury to Public Servant

By virtue of S.189 whoever holds out any threat of injury to any public servant, or to

any person in whom he believes that public servant to be interested, for the purpose of

inducing that public servant to do any act, or to forbear or delay to do any act, connected

with the exercise of the public functions of such public servant, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine,

or with both.

19. Threat of Injury to Induce Person to Refrain From Applying for Protection to Public

Servant

By virtue of S.190 whoever holds out any threat of injury to any person for the

purpose of inducing that person to refrain or desist from making a legal application for

protection against any injury to any public servant legally empowered as such to give such

protection, or to cause such protection to be given, shall be punished with imprisonment of

either description for a term which may extend to one year, or with fine, or with both.

TOPIC 17

FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE

(Ss.191-229)

1. Giving false Evidence

By virtue of S.191 whoever, being legally bound by an oath or by an express

provision of law to state the truth, or being bound by law to make a declaration upon any

subject, makes any statement which is false, and which he either knows or believes to be

false or does not believe to be true, is said to give false evidence.

Illustrations

A, in support of a just claim which B has against Z for one thousand rupees, falsely

swears on a trial that he heard Z admit the justice of B’s claim. A has given false evidence.

2. Fabricating False Evidence

By virtue of S.192 Whoever causes any circumstance to exist or makes any false entry

in any book or record, or makes any document containing a false statement, intending that

such circumstance, false entry or false statement may appear in evidence in a judicial

proceeding, or in a proceeding taken by law before a public servant as such, or before an

arbitrator, and that such circumstance, false entry or false statement, so appearing in

evidence, may cause any person who in such proceeding is to form an opinion upon the

evidence, to entertain an erroneous opinion touching any point material to the result of such

proceeding, is said “to fabricate false evidence”.

Illustrations

A puts jewels into a box belonging to Z, with the intention that they may be found in

that box, and that this circumstance may cause Z to be convicted of theft. A has fabricated

false evidence.

By virtue of S.193 whoever intentionally gives false evidence in any stage of a

judicial proceeding, or fabricates false evidence for the purpose of being used in any stage

of a judicial proceeding, shall be punished with imprisonment of either description for a

term which may extend to seven years, and shall also be liable to fine; and whoever

intentionally gives or fabricates false evidence in any other case, shall be punished with

imprisonment of either description for a term which may extend to three years, and shall

also be liable to fine.

Illustration

A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought

to be committed for trial, makes on oath a statement which he knows to be false. The

enquiry is a stage of a judicial proceeding, A has given false evidence.

3. Giving or Fabricating false Evidence with Intent to Procure Conviction of Capital

Offence

By virtue of S.194 whoever gives or fabricates false evidence, intending thereby to

cause, or knowing it to be likely that he will thereby cause, any person to be convicted of

an offence which is capital by the law for the time being in force in India shall be punished

with imprisonment for life, or with rigorous imprisonment for a term which may extend to

ten years, and shall also be liable to fine;

If innocent person be thereby convicted and executed and if an innocent person be

convicted and executed in consequence of such false evidence, the person who gives such

false evidence shall be punished either with death or the punishment hereinbefore

described.

4. Giving or Fabricating false Evidence with Intent to Procure Conviction of Offence

Punishable with Imprisonment for Life or Imprisonment

By virtue of S.195 whoever gives or fabricates false evidence intending thereby to

cause, or knowing it to be likely that he will thereby cause, any person to be convicted of

an offence which by the law for the time being in force in India is not capital, but

punishable with imprisonment for life, or imprisonment for a term of seven years or

upwards, shall be punished as a person convicted of that offence would be liable to be

punished.

Illustration

A gives false evidence before a Court of Justice intending thereby to cause Z to be

convicted of a dacoity. The punishment of dacoity is imprisonment for life, or rigorous

imprisonment for a term which may extend to ten years, with or without fine. A, therefore,

is liable to imprisonment for life or imprisonment, with or without fine.

5. Using Evidence known to be false

By virtue of S.196 whoever corruptly uses or attempts to use as true or genuine

evidence any evidence which he knows to be false or fabricated, shall be punished in the

same manner as if he gave or fabricated false evidence.

6. Issuing or Signing False Certificate

By virtue of S.197 whoever issues or signs any certificate required by law to be given

or signed, or relating to any fact of which such certificate is by law admissible in evidence,

knowing or believing that such certificate is false in any material point, shall be punished in

the same manner as if he gave false evidence.

7. Using as True a Certificate known to be false

By virtue of S.198 whoever corruptly uses or attempts to use any such certificate as a

true certificate, knowing the same to be false in any material point, shall be punished in the

same manner as if he gave false evidence.

8. False Statement Made in Declaration which is by Law Receivable as Evidence

By virtue of S.199 whoever, in any declaration made or subscribed by him, which

declaration any Court of Justice, or any public servant or other person, is bound or

authorised by law to receive as evidence of any fact, makes any statement which is false,

and which he either knows or believes to be false or does not believe to be true, touching

any point material to the object for which the declaration is made or used, shall be punished

in the same manner as if he gave false evidence.

9. Using as True Such Declaration knowing it to be false

By virtue of S.200 whoever corruptly uses or attempts to use as true any such

declaration, knowing the same to be false in any material point, shall be punished in the

same manner as if he gave false evidence.

10. Causing Disappearance of Evidence of Offence, or giving false Information to Screen

Offender

By virtue of S.201 whoever, knowing or having reason to believe that an offence has

been committed, causes any evidence of the commission of that offence to disappear, with

the intention of screening the offender from legal punishment, or with that intention gives

any information respecting the offence which he knows or believes to be false.

If a capital offence shall, if the offence which he knows or believes to have been

committed is punishable with death, be punished with imprisonment of either description

for a term which may extend to seven years, and shall also be liable to fine; If punishable

with imprisonment for life and if the offence is punishable with imprisonment for life, or

with imprisonment which may extend to ten years, shall be punished with imprisonment of

either description for a term which may extend to three years, and shall also be liable to

fine; If punishable with less than ten years’ imprisonment and if the offence is punishable

with imprisonment for any term not extending to ten years, shall be punished with

imprisonment of the description provided for the offence, for a term which may extend to

one-fourth part of the longest term of the imprisonment provided for the offence, or with

fine, or with both.

Illustration

A, knowing that B has murdered Z, assists B to hide the body with the intention of

screening B from punishment. A is liable to imprisonment of either description for seven

years, and also to fine.

11. Intentional Omission to give Information of Offence by Person Bound to Inform

By virtue of S.202 whoever, knowing or having reason to believe that an offence has

been committed, intentionally omits to give any information respecting that offence which

he is legally bound to give, shall be punished with imprisonment of either description for a

term which may extend to six months, or with fine, or with both.

12. Giving false Information Respecting an Offence Committed

By virtue of S. 203 whoever knowing or having reason to believe that an offence has

been committed, gives any information respecting that offence which he knows or believes

to be false, and shall be punished with imprisonment of either description for a term which

may extend to two year, or with fine, or with both.

13. Destruction of Document to Prevent its Production as Evidence

By virtue of S.204 whoever secretes or destroys any document which he may be

lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding

lawfully held before a public servant as such, or obligates or renders illegible the whole or

any part of such document with the intention of prevention the same from being produced

or used as evidence before such Court or public servant as aforesaid, or after he shall have

been lawfully summoned or required to produce the same for that purpose, shall be

punishable with imprisonment of either description for a term which may extend to two

years, or with fine, or with both.

14. False Personation for Purpose of Act or Proceeding in Suit or Prosecution

By virtue of S.205 whoever falsely personates another, and in such assumed character

makes any admission or statement, or confesses judgment, or causes any process to be

issued or becomes bail or security, or does any other act in any suit or criminal prosecution,

shall be punished with imprisonment of either description for a term which may extend to

three years or with fine, or with both.

15. Fraudulent Removal or Concealment of Property to Prevent its Seizure as Forfeited or

in Execution

By virtue of S.206 whoever fraudulently removes, conceals, transfers or

delivers to any person any property or any interest therein, intending thereby to prevent that

property or interest therein from being taken as a forfeiture or in satisfaction of a fine,

under a sentence which has been pronounced, or which he knows to be likely to be

pronounced, by a Court of Justice or other competent authority, or from being taken in

execution of a decree or order which has been made, or which he knows to be likely to be

made by a Court of Justice in a civil suit, shall be punished with imprisonment of either

description for a term which may extend to two years, or with fine, or with both.

16. Fraudulent Claim to Property to Prevent its Seizure as Forfeited or in Execution

By virtue of S.207 whoever fraudulently accepts, receives or claims any

property or any interest therein, knowing that he has no right or rightful claim to such

property or interest, or practices any deception touching any right to any property or any

interest therein, intending thereby to prevent that property or interest therein from being

taken as a forfeiture or a satisfaction of a fine, under a sentence which has been

pronounced, or which he knows to be likely to be pronounced by a Court of Justice or other

competent authority, or from being taken in execution of a decree or order which has been

made or which knows to be likely to be made by a Court of Justice in a civil suit, shall be

punished with imprisonment of either description for a term which may extend to two

years, or with fine, or with both.

17. Fraudulently Suffering Decree for Sum not Due

By virtue of S.208 whoever fraudulently causes or suffer a decree or order to be

passed against him at the suit of any person for a sum not due or for a larger sum that is due

to such person or for any property or interest or property to which such person is not

entitled, or fraudulently causes or suffers a decree order to be executed against him after it

has been satisfied, or for anything in respect of which it has been satisfied, shall be

punished with imprisonment of either description for a term which may extend to two

years, or with fine, or with both.

Illustration

A institutes a suit against Z. Z knowing that A is likely to obtain a decree against him,

fraudulently suffers a judgment to pass against him for a larger amount at the suit of B, who

has no just claim against him, in order that B, either on his own account or for the benefit of

Z, may share in the proceeds of any sale of Z’s property which may be made under A’s

decree. Z has committed an office under this Section.

18. Dishonestly Making False Claim in Court

By virtue of S.209 whoever fraudulently or dishonestly, or with intent to injure or any

person, makes in a Court of Justice any claim which he knows to be false, shall be punished

with imprisonment of either description for a term which may extend to two years, and

shall also be liable to fine.

19. Fraudulently Obtaining Decree for Sum not Due

By virtue of S.210 whoever fraudulently obtains a decree or order against any person

for a sum not due or for a larger sum than is due, or for any property or interest in property

to which he is not entitled, or fraudulently causes a decree or order to be executed against

any person after it has been satisfied or for anything in respect of which it has been

satisfied, or fraudulently suffers or permits any such act to be done in his name, shall be

punished with imprisonment of either description for a term which may extend to two

years, or with fine, or with both.

20. False Charge of Offence Made with Intent to Injure

By virtue of S.211 whoever with intent to cause injury to any person, institutes or

causes to be instituted any criminal proceeding against that person, or falsely charges any

person with having committed an offence, knowing that there is no just or lawful ground

for such proceeding or charge against that person, shall be punished with imprisonment of

either description for a term which may extend to two years, or with fine, or with both;

and if such criminal proceeding be instituted on a false charge of an offence

punishable with death imprisonment for life, or imprisonment for seven years or upwards,

shall be punishable with imprisonment of either description for a term which may extend to

seven years, and shall also be liable to fine.

21. Harbouring Offender

By virtue of S.212 whenever an offence has been committed, whoever harbours or

conceals a person whom he knows or has reasons to believe to be the offender, with the

intention of screening him from legal punishment.,

if a capital offence- shall, if the offence is punishable with death, be punished with

imprisonment of either description for a term which may extend to five years, and shall also

be liable to fine;

if punishable with imprisonment for life, or with imprisonment- and if the offence

is punishable with imprisonment for life or with imprisonment which may extend to ten

years, shall be punished with imprisonment of either description for a term which may

extend to three years, and shall also be liable to fine; and if the offence is punishable with

imprisonment which may extend to one year, and not to ten years, shall be punished with

imprisonment of the description provided for the offence for a term which may extend to

one-fourth part of the longest term of imprisonment provided for the offence, or with fine,

or with both.

Exception

This provision shall not extend to any case in which the harbour or concealment is by

the husband or wife of the offender.

Illustration

A, knowing that B has committed dacoity, knowingly conceals B in order to screen

him from legal punishment. Here, as B is liable to imprisonment for life, A is liable to

imprisonment of either description for a term not exceeding three years, and also liable to

fine.

22. Taking gift, etc., to Screen an Offender from Punishment

By virtue of S.213 whoever accepts or attempts to obtain, or agrees to accept, any

gratification for himself or any other person, or any restitution of property to himself or any

other person, in consideration of his concealing an offence or of his screening any person

from legal punishment for any offence, or of his not proceeding against any person for the

purpose of bringing him to legal punishment;

if a capital offence- shall, if the offence is punishable with death, be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine;

if punishable with imprisonment for life, or with imprisonment- and if the offence

is punishable with imprisonment for life, or with imprisonment which may extend to ten

years, shall be punished with imprisonment of either description for a term which may

extend to three years, and shall also be liable to fine;

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and if the offence is punishable with imprisonment not exceeding to ten, or with

years, shall be punished with imprisonment of the description provided for the offence for a

term which may extend to one-fourth part of the longest term of imprisonment provided for

the offence, or with fine, or with both.

23. Offering Gift or Restoration of Property in Consideration of Screening Offender

By virtue of S.214 whoever gives or causes, or offers or agrees to give or cause, any

gratification to any person, restores or causes the restoration of any property to any person,

in consideration of that person’s concealing an offence, or of his screening my person from

legal punishment for any offence, or of his not proceeding against any person for the

purpose of bringing him to legal punishment;

if a capital offence:- shall, if the offence is punishable with death, be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine;

if punishable with imprisonment for life, or with imprisonment:- and if the

offence is punishable with imprisonment for life, or with imprisonment which may extend

to ten years, shall be punished with imprisonment of either description for a term which

may extend to three years, and shall also be liable to fine;

and if the offence is punishable with imprisonment not exceeding to ten years shall be

punished with imprisonment of the description provided for the offence for a term which

may extend to one-fourth part of the longest term of imprisonment provided for the offence,

or with fine, or with both.

24. Taking gift to help to Recover Stolen Property, etc

By virtue of S.215 whoever takes or agrees or consents to take any gratification under

pretence or on account of helping any person to recover any movable property of which he

shall have been deprived by any offence punishable under this Code, shall, unless he uses

all means in his power to cause the offender to be apprehended and convicted of the

offence, be punished with imprisonment of either description for a term which may extend

to two years, or with fine, or with both.

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25. Harbouring Offender who has escaped from Custody or who’s Apprehension has been

Ordered

By virtue of S.216 whenever any person convicted of or charged with an offence,

being in lawful custody for that offence, escapes from such custody;

or whenever a public servant, in the exercise of the lawful powers of such public

servant, orders a certain person to be apprehended for an offence, whoever, knowing of

such escape or order for apprehension, harbours of conceals that person which the intention

of preventing him from being apprehended, shall be punished in the manner following that

is to say,

if a capital offence- if the offence for which the person was in custody or is ordered

to be apprehended is punishable with death, he shall be punished with imprisonment of

either description for a term which may extend to seven years, and shall also be liable to

fine;

if punishable with imprisonment for life, or with imprisonment- If the offence is

punishable with imprisonment for life, or with imprisonment for ten years, he shall be

punished with imprisonment of either description for a term which may extend to three

years, with or without fine;

and if the offence is punishable with imprisonment which may extend to one year and

not to ten years, he shall be punished with imprisonment of the description provided for the

offence for a term which may extend to one-fourth part of the longest term of imprisonment

provided for the offence, or with fine, or with both.

By virtue of S.216 A whoever, knowing or having reason to believe that any persons

are about to commit or have recently committed robbery or dacoity, harbours them or any

of them, with the intention of facilitating the commission of such robbery or dacoity or of

screening them or any of them from punishment, shall be punished with rigorous

imprisonment for a term which may extend to seven years, and shall also be liable to fine.

26. Public Servant Disobeying Direction of Law with Intent to Save Person from

Punishment or Property from Forfeiture

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By virtue of S.217 whoever, being a public servant, knowingly disobeys any direction

of the law as to the way in which he is conduct himself as such public servant, intending

thereby to save, or knowing it to be likely that he will thereby save, any person from legal

punishment, or subject him to a less punishment than that to which he is liable, or with

intent to save, or knowing that he is likely thereby to save, any property from forfeiture or

any charge to which it is liable by law, shall be punished with imprisonment of either

description for a term which may extend to two years, or with fine, or with both

27. Public Servant Framing Incorrect Record or Writing with Intent to Save Person from

Punishment or Property from Forfeiture

By virtue of S.218 whoever, being a public servant, and being as such public servant,

charged with the preparation of any record or other writing, frames that record or writing in

a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely

that he will thereby cause, loss or injury to the public or to any person, or with intent

thereby to save, or knowing it to be likely that he will thereby save, any person from legal

punishment, or with intent to save, or knowing that he is likely thereby to save, any

property from forfeiture or other charge to which it is liable by law, shall be punished with

imprisonment of either description for a term which may extend to three years, or with fine,

or with both.

28. Public Servant in Judicial Proceeding Corruptly making Report, etc., Contrary to Law

By virtue of S.219 whoever, being a public servant, corruptly or maliciously makes or

pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision

which he knows to be contrary to law, shall be punished with imprisonment of either

description for a term which may extend to seven years, or with fine, or with both.

29. Commitment for Trial or Confinement by Person Having Authority who knows that he

is Acting Contrary to Law

By virtue of S.220 whoever, being in any office which gives legal authority to commit

persons for trial or to commitment, or to keep persons in confinement, corruptly or

maliciously commits any person for trial or to confinement, or keeps any person in

confinement, in the exercise of that authority knowing that in so doing he is acting contrary

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to law, shall be punished with imprisonment of either description for a term which may

extend to seven years, or with fine, or with both.

30. Intentional Omission to Apprehend on the Part of Public Servant Bound to Apprehend

By virtue of S.221whoever, being a public servant, legally bound as such public

servant to apprehend or to keep in confinement any person charged with or liable to

apprehended for an offence, intentionally omits to apprehend such person, or intentionally

suffers such person to escape, or intentionally aids such person in escaping or attempting to

escape from such confinement, shall be punished as follows, that is to say: with

imprisonment of either description for a term which may extend to seven years, with or

without fine, if the person in confinement, or who ought to have been apprehended, was

charged with, or liable to be apprehended for, an offence punishable with death; or with

imprisonment of either description for a term which may extend to three years, with or

without fine, if the person in confinement or who ought to have been apprehended, was

charged with, or liable to be apprehended for, an offence punishable with imprisonment for

life or imprisonment for a term which may extend to ten years; or with imprisonment of

either description for a term which may extend to two years, with or without fine, if the

person in confinement, or who ought to have been apprehended, was charged with, or liable

to be apprehended for, an offence punishable with imprisonment for a term less than ten

years.

32. Intentional Omission to Apprehend on the Part of Public Servant Bound to Apprehend

Person under Sentence or Lawfully Committed

By virtue of S.222 whoever, being a public servant, legally bound as such public

servant to apprehend or to keep in confinement any person under sentence of a Court of

Justice for any offence or lawfully committed to custody, intentionally omits to apprehend

such person, or intentionally suffers such person to escape, or intentionally aids such person

in escaping or attempting to escape from such confinement, shall be punished as follows,

that is to say with imprisonment of life or with imprisonment of either description for a

term which may extend to fourteen years, with or without fine, if the person in

confinement, or who ought to have been apprehended, is under sentence of death; or with

imprisonment of either description for a term which may extend to seven years, with or

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without fine, if the person in confinement or who ought to have been apprehended, is

subject, by a sentence of a Court of Justice, or by virtue of a commutation of such sentence,

to imprisonment for life or imprisonment for a term of ten years or upwards; or with

imprisonment of either description for a term which may extend to two years, or with fine,

or with both, if the person in confinement, or who ought to have been apprehended is

subject, by a sentence of a Court of Justice, to imprisonment for a term not exceeding to ten

years or if the person was lawfully committed to custody.

33. Escape from Confinement or Custody Negligently Suffered by Public Servant

By virtue of S.223 whoever, being a public servant legally bound as such public

servant to keep in confinement any person charged with or convicted of any offence 1[or

lawfully committed to custody], negligently suffers such person to escape from

confinement, shall be punished with simple imprisonment for a term which may extend to

two years, or with fine, or with both.

34. Resistance or Obstruction by a Person to his Lawful Apprehension

By virtue of S.224 whoever intentionally offers any resistance or illegal obstruction to

the lawful apprehension of himself for any offence with which he is charged or of which he

has been convicted, or escapes or attempts to escape from custody in which he is lawfully

detained for any such offence, shall be punished with imprisonment of either description

for a term which may extend to two years, or with fine, or with both.

35. Resistance or Obstruction to Lawful Apprehension of another Person

By virtue of S.225 whoever intentionally offers any resistance or illegal obstruction to

the lawful apprehension of any other person for an offence, or rescues or attempts to rescue

any other person from any custody in which that person is lawfully detained for an offence,

shall be punished with imprisonment of either description for a term which may extend to

two years, or with fine, or with both; if the person to be apprehended, or the person rescued

or attempted to be rescued, is charged with or liable to be apprehended for an offence

punishable with imprisonment for life or imprisonment for a term which may extend to ten

years, shall be punished with imprisonment of either description for a term which may

extend to three years, and shall also be liable to fine; or, if the person to be apprehended, or

the person attempted to be rescued, is charged with or liable to be apprehended for an

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offence punishable with death, shall be punished with imprisonment of either description

for a term which may extend to seven years, and shall also be liable to fine; or, if the person

to be apprehended or rescued, or attempted to be rescued, is liable under the sentence of a

Court of Justice, or by virtue of a commutation of such a sentence, to imprisonment for life

or imprisonment, for a term of ten years or upwards, shall be punished with imprisonment

of either description for a term which may extend to seven years, and shall also be liable to

fine; or, if the person to be apprehended or rescued, or attempted to be rescued, is under

sentence of death, shall be punished with imprisonment for life or imprisonment of either

description for a term not exceeding ten years, and shall also be liable to fine.

36. Omission to Apprehend, or Sufferance of escape on Part of Public Servant

By virtue of S.225A whoever, being a public servant legally bound as such public

servant to apprehend, or to keep in confinement, any person in any case not provided for in

Section 221, Section 222 or Section 223, or in any other law for the time being in force,

omits to apprehend that person or suffers him to escape from confinement, shall be

punished: -

(a) If he does so intentionally, with imprisonment of either description of either

description for a term which may extend to three years, or with fine, or with both; and

(b) If he does so negligently, with simple imprisonment for a term this may extend to two

years, or with fine, or with both.

37. Resistant or Obstruction to Lawful Apprehension

By virtue of S.225B whoever, in any case not provided for in Section 224 or 225 or in

any other law for the time being in force, intentionally offers any resistance or illegal

obstruction to the lawful apprehension of himself or of any other person, or escape or

attempts to escape from any custody in which he is lawfully detained, or rescues or

attempts to rescue any other person from any custody in which that person is lawfully

detained, shall be punished with imprisonment of either description for a term which may

extend to six months, or with fine, or with both.

38. Intentional Insult or Interruption to Public Servant Sitting in Judicial Proceeding

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By virtue of S.228 whoever intentionally offers any insult, or causes any interruption

to any public servant, while such public servant is sitting in any stage of a judicial

proceeding, shall be punished with simple imprisonment for a term which may extend to

six months, or with fine which may extend to one thousand rupees, or with both.

39. Disclosure of Identity of the Victim of Certain Offences etc

By virtue of S.228A (1) whoever prints or publishers the name or any matter which

may make known the identity of any person against whom an offence under Section 376,

Section 376A, Section 376B, Section 376C, or Section 376D is alleged or found to have

been committed (hereafter in this Section referred to as the victim) shall be punished with

imprisonment of either description for a term which may extend to two years and shall also

be liable to fine.

(2) Nothing in sub-Section (1) extends to any printing or publication of the name or any

matter which may make known the identity of the victim if such printing or publication is:-

(a) By or under the order in writing of the officer-in-charge of the police station or the

police officer making the investigation into such offence acting in good faith for the

purposes of such investigation; or

(b) By, or with authorization in writing of, the victim; or

in writing of, the next of kin of the victim:

Provided that no such authorization shall be given by the next of kin to anybody other

than the chairman or the secretary, by whatever name called, of any recognized welfare

institution or organization.

(3) Whoever prints or publishes any matter in relation to any proceeding before a court

with respect to an offence referred to in sub-section (1) without the previous permission of

such court shall be punished with imprisonment of either description for a term which may

extend to two years and shall also be liable to fine.

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40. Personation of a Juror or Assessor

By virtue of S.229 whoever by personation or otherwise, shall intentionally cause, or

knowingly suffer himself to be returned, empanelled or sworn as a juryman or assessor in

any case in which he knows that he is not entitled by law to be so returned, empanelled or

sworn, or knowing himself to have been so returned, empanelled or sworn contrary to law,

shall voluntarily serve on such jury or as such assessor, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine,

or with both.

TOPIC 18

OFFENCES RELATING TO COIN AND

GOVERNMENT STAMPS

(Ss. 230-264)

Coin

Definition

By virtue of S.230 coin is metal used for the time being as money, and stamped and

issued by the authority of some State or sovereign Power in order to be so used.

Indian coin is metal stamped and issued by the authority of the Government of India

in order to be used as money; and metal which has been so stamped and issued shall

continue to be Indian coin for the purposes of this Chapter, notwithstanding that it may

have ceased to be used as money.

Illustration

(a) Cowries are not coin.

(b) Lumps of unstamped copper, though used as money, are not coin.

(d) The coin denominated as the Company’s rupee is Indian coin.

Counterfeiting Coin

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By virtue of S.231 whoever counterfeits or knowingly performs any part of the

process of counterfeiting coin, shall be punished with imprisonment of either description

for a term which may extend to seven years, and shall also be liable to fine. A person

commits this offence who intending to practice deception, or knowing it to be likely that

deception will thereby be practiced, causes a genuine coin to appear like a different coin.

1. Counterfeiting Indian Coin

By virtue of S.232 whoever counterfeits, or knowingly performs any part of the

process of counterfeiting Indian coin, shall be punished with imprisonment for life, or with

imprisonment of either description for a term which may extent to ten years, and shall also

be liable to fine.

2. Making or Selling Instrument for Counterfeiting Coin

By virtue of S.233 whoever makes or mends, or performs any part of the process of

making or mending, or buys, sells or disposes of, any die or instrument, for the purpose of

being used, or knowing or having reason to believe that it is intended to be used, for the

purpose of counterfeiting coin, shall be punished with imprisonment of either description

for a term which may extend to three years, and shall also be liable to fine.

3. Making or Selling Instrument for Counterfeiting Indian Coin

By virtue of S.234 whoever makes or mends, or performs any part of the process of

making or mending, or buys, sells or disposes of, any die or instrument, for the purpose of

being used, or knowing or having reason to believe that it is intended to be used, for the

purpose of counterfeiting Indian coin, shall be punished with imprisonment of either

description for a term which may extend to seven years, and shall also be liable to fine.

4. Possession of Instrument, or Material for the Purpose of Using the Same for

Counterfeiting Coin

By virtue of S.235 whoever is in possession of any instrument or material, for the

purpose of using the same for counterfeiting coin, or knowing or having reason to believe

that the same is intended to be used for that purpose, shall be punished with imprisonment

of either description for a term which may extend to three years, and shall also be liable to

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fine. If the coin to be counterfeited is Indian coin, shall be punished with imprisonment of

either description for a term which may extend to ten years, and shall also be liable to fine.

5. Import or Export of Counterfeit Coin

By virtue of S.237 whoever imports into India, or exports there from, any counterfeit

coin, knowing or having reason to believe that the same is counterfeit, shall be punished

with imprisonment of either description for a term which may extend to three years and

shall also be liable to fine.

6. Import or Export of Counterfeits of the Indian Coin

By virtue of S.238 whoever imports into India, or exports there from any counterfeit

coin, which he knows or has reason to believe to be a counterfeit of Indian coin, shall be

punished with imprisonment with imprisonment for life, or with imprisonment of either

description for a term which may extend to ten years, and shall also be liable to fine.

7. Delivery of Coin, Possessed with Knowledge that it is Counterfeit

By virtue of S.239 whoever, having any counterfeit coin, which at the time when he

became possessed of it knew to be counterfeit, fraudulently or with intent that fraud may be

committed, delivers the same to any person, or attempts to induce any person to receive it

shall be punished with imprisonment of either description for a term which may extend to

five years, and shall also be liable to fine.

8. Delivery of Indian Coin, Possessed with Knowledge that it is Counterfeit

By virtue of S.240 whoever, having any counterfeit coin which is a counterfeit of

Indian coin, and which, at the time when he became possessed of it, he knew to be a

counterfeit of Indian coin, fraudulently or with intent that fraudulently or with intent that

fraud may be committed, delivers the same to any person, or attempts to induce any person

to receive it shall be punished with imprisonment of either description for a term which

may extend to ten years, and shall also be liable to fine.

9. Delivery of Coin as Genuine, which, when First Possessed, the Deliverer did not know to

be Counterfeit

By virtue of S.241 whoever delivers to any other person as genuine, or attempts to

induce any other person to receive as genuine, any counterfeit coin which he knows to be

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counterfeit, but which he did not know to be counterfeit at the time when he took it into his

possession, shall be punished with imprisonment of either description for a term which may

extend to two years, or with fine to an amount which may extend to ten times the value of

the coin counterfeited, or with both.

Illustration

A, a coiner, delivers counterfeit Company’s rupees to his accomplice B, for the

purpose of uttering them. B sells the rupees to C, another utterer, who buys them knowing

them to be counterfeit. C pays away the rupees for good to D, who receives them, not

knowing them to be counterfeit. D, after receiving the rupees, discovers that they are

counterfeit and pays them away as if they were good. Here D is punishable only under his

Section, but B and C are punishable under Section 239 or 240, as the case may be.

10. Possession of Counterfeit Coin by Person who knew it to be Counterfeit

By virtue of S.242 whoever, fraudulently or with intent that fraud may be committed,

is in possession of counterfeit coin, having known at the time when he became possessed

thereof that such coin was counterfeit, shall be punished with imprisonment of either

description for a term which may extend to three years, and shall also be liable to fine.

11. Possession of Indian Coin by Person who knew it to be Counterfeit when he became

Possessed thereof

By virtue of S.243 whoever, fraudulently or with intent that fraud may be committed,

is in possession of counterfeit coin, which is a counterfeit of Indian coin, having known at

the time when he became possessed of it that it was counterfeit, shall be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine.

12. Person Employed in Mint Causing Coin to be of Different Weight or Composition from

that Fixed by Law

By virtue of S.244 whoever, being employed in any mint lawfully established in India,

does any act, or omits what he is legally bound to do, with the intention of causing any coin

issued from that mint to be of a different weight or composition from the weight or

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composition fixed by law, shall be punished with imprisonment of either description for a

term which may extend to seven years, and shall also be liable to fine.

13. Unlawfully Taking Coining Instrument from Mint

By virtue of S.245 whoever, without lawful authority, takes out of any mint, lawfully

established in India, any coining tool or instrument, shall be punished with imprisonment of

either description for a term which may extend to seven years, and shall also be liable to

fine.

14. Fraudulently or Dishonestly Diminishing Weight or Altering Composition of Coin

By virtue of S.246 whoever fraudulently or dishonestly performs on any coin any

operation which diminishes the weight or alters the composition of that coin, shall be

punished with imprisonment of either description for a term which may extend to three

years, and shall also be liable to fine.

15. Fraudulently or Dishonestly Diminishing Weight or Altering Composition of Indian

Coin

By virtue of S.247 whoever fraudulently or dishonestly performs on any Indian coin

any operation which diminishes the weight or alters the composition of that coin, shall be

punished with imprisonment of either description for a term which may extend to seven

years, and shall also be liable to fine.

16. Altering Appearance of Coin with Intent that it shall pass as Coin of Different

Description

By virtue of S.248 whoever performs on any coin any operation which alters the

appearance of that coin, with the intention that the said coin shall pass as a coin of a

different description, shall be punished with imprisonment of either description for a term

which may extend to three years, and shall also be liable to fine.

17. Altering Appearance of India Coin with Intent that it shall pass as Coin of Different

Description

By virtue of S.249 whoever performs on any Indian coin any operation which alters

the appearance of that coin, with the intention that the said coin shall pass as a coin of a

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different description, shall be punished with imprisonment of either description for a term

which may extend to seven years, and shall also be liable to fine.

18. Delivery of Coin, Possessed with Knowledge that it is Altered

By virtue of S.250 whoever, having coin in his possession with respect to which the

offence defined in Section 246 or 248 has been committed, and having known at the time

when he became possessed of such coin that such offence had been committed with respect

to it, fraudulently or with intent that fraud may be committed, delivers such coin to any

other person, or attempts to induce any other person to receive the same, shall be punished

with imprisonment of either description for a term which may extend to five years, and

shall also be liable to fine.

19. Delivery of Indian Coin, Possessed with Knowledge that it is Altered

By virtue of S.251 whoever, having coin in his possession with respect to which the

offence defined in Section 247 or 249 has been committed, and having known at the time

when he became possessed of such coin that such offence had been committed, delivers

such coin to any other person, or attempts to induce any other person to receive the same,

shall be punished with imprisonment of either description for a term which may extend to

ten years, and shall also be liable to fine.

20. Possession of Coin by Person who knew it to be Altered when he became Possessed

thereof

By virtue of S.252 whoever, fraudulently or with intent that fraud may be committed,

is in possession of coin with respect to which the offence defined in either of the Section

246 or 248 has been committed, having known at the time of becoming possessed thereof

that such offence had been committed with respect to such coin, shall be punished with

imprisonment of either description for a term which may extend to three years and shall

also be liable to fine.

21. Possession of Indian Coin by Person who knew it to be Altered when he became

Possessed thereof

By virtue of S.253 whoever, fraudulently or with intent that fraud may be committed,

is in possession of coin with respect to which the offence defined in either of the Section

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247 or 249 has been committed, having known at the time of becoming possessed thereof,

that such offence had been committed with respect to such coin, shall be punished with

imprisonment of either description for a term which may extend to five years, and shall also

be liable to fine.

22. Delivery of Coin as Genuine, which, when First Possess, the Deliverer did not know to

be Altered

By virtue of S.254 whoever delivers to any other person as genuine or as a coin of a

different description from what it is, or attempts to induce any person to receive as genuine,

or as a different coin from what it is, any coin in respect of which he knows that any such

operation as that mentioned in Section 246, 247, 248 or 249 has been performed, but in

respect of which he did not, at the time when he took it into his possession, know that such

operation had been performed, shall be punished with imprisonment of either description

for a term which may extend to two years, or with fine to an amount which may extend to

ten times the value of the coin for which the altered coin is passed, or attempted to be

passed.

23. Counterfeiting Government Stamp

By virtue of S.255 whoever counterfeits, or knowingly performs any part of the

process of counterfeiting, any stamp issued by Government for the purpose of revenue,

shall be punished with imprisonment for life, or with imprisonment of either description for

a term which may extend to ten years, and shall also be liable to fine.

24. Having Possession of Instrument or Material for Counterfeiting Government Stamp

By virtue of S.256 whoever has in his possession any instrument or material for the

purpose of being used, or knowing or having reason to believe that it is intended to be used,

for the purpose of counterfeiting any stamp issued by Government for the purpose of

revenue, shall be punished with imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine.

25. Making or Selling Instrument for Counterfeiting Government Stamp

By virtue of S.257 whoever makes or performs any part of the process of making, or

buys, or sells, or dispose of, any instrument for the purpose of being used, or knowing or

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having reason to believe that it is intended to be used, for the purpose of counterfeiting any

stamp issued by Government for the purpose of revenue, shall be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine.

26. Sale of Counterfeit Government Stamp

By virtue of S.258 whoever, sells, or offers for sale, any stamp which he knows or has

reason to believe to be a counterfeit of any stamp issued by the Government for the purpose

of revenue, shall be punished with imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine.

27. Having Possession of Counterfeit Government Stamp

By virtue of S.259 whoever has in his possession any stamp which he knows to be a

counterfeit of any stamp issued by Government for the purpose of revenue, intending to

use, or dispose of the same as a genuine stamp, or in order that it may be used as a genuine

stamp, shall be punished with imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine.

28. Using as Genuine a Government Stamp known to be a Counterfeit

By virtue of S.260 whoever uses a s genuine any stamp, knowing it to be counterfeit

of any stamp issued by Government for the purpose of revenue, shall be punished with

imprisonment of either description for a term which may extend to seven years, or with

fine, or with both.

29. Efface Writing from Substance Bearing Government Stamp, or Removing from

Document a Stamp Used for it, with Intent to Cause Loss to Government

By virtue of S.261 whoever, fraudulently or with intent to cause loss to the

Government, removes of effaces from any substance, bearing any stamp issued by

Government for the purpose of revenue, any writing or document for which such stamp has

been used, or removes from any writing or document a stamp which has been used for such

writing or document, in order that such stamp may be used for a different writing or

document, shall be punished with imprisonment of either description for a term which may

extend to three years, or with fine, or with both.

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30. Using Government Stamp known to have been before used

By virtue of S.262 whoever, fraudulently or with intent to cause loss to the

Government, uses for any purpose a stamp issued by Government for the purpose of

revenue, which he knows to have been before used, shall be punished with imprisonment of

either description for a term which may extend to two years, or with fine, or with both.

31. Erasure of Mark Denoting that Stamp has been used

By virtue of S.263 whoever, fraudulently or with intent to cause loss to Government,

erase or removes from a stamp issued by the Government for the purpose of revenue, any

mark, put or impressed upon such stamp for the purpose of denoting that the same has been

used, or knowingly has in his possession or sells or disposes of any such stamp from which

such mark has been erased or removed, or sell or disposes of any such stamp which he

knows to have been used, shall be punished with imprisonment of either description for a

term which may extend to three years, or with fine, or with both.

32. Prohibition of Fictitious Stamps

By virtue of S.263A (1) whoever 

(a) Makes, knowingly utters, deals in or sells any fictitious stamps, or knowingly uses for

any postal purpose any fictitious stamp, or

(b) Has in his possession, without lawful excuse, any fictitious stamp, or

or materials for making any fictitious stamp, Shall be punished with fine which may extend

to two hundred rupees.

By virtue of S.263A (2) any such stamps, die, plate, instrument or materials in the

possession of any person for making any fictitious stamp may be seized and, if seized shall

be forfeited.

By virtue of S.263A (3) in this Section “fictitious stamp” means any stamp falsely

purporting to be issued by the Government for the purpose of denoting a rate of postage, or

any facsimile or imitation or representation, whether on paper or otherwise, of any stamp

issued by Government for that purpose.

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By virtue of S.263A (4) In this Section and also in Sections 255 to 263, both

inclusive, the word, “Government”, when used in connection with, or in reference to, any

stamp issued for the purpose of denoting a rate of postage shall notwithstanding anything in

Section 17 be deemed to include the person or persons authorized by law to administer

executive government in any part of India, and also in any part of Her Majesty’s dominions

or in any foreign country.

TOPIC 19

OFFENCES RELATING TO WEIGHTS

AND MEASURES

(Ss. 264-267)

1. Fraudulent use of false Instrument for Weighing

By virtue of S.264 whoever fraudulently uses any instrument for weighing which he

knows to be false, shall be punished with imprisonment or either description for a term

which may extend to one year, or with fine, or with both.

2. Fraudulent use of false Weight or Measure

By virtue of S.265 whoever fraudulently uses nay false weight or false measure of

length or capacity, or fraudulently uses any weight or any measure of length or capacity as

different weight or measure form what it is, shall be punished with imprisonment of either

description for a term which may extend to one year, or with fine, or with both.

3. Being in Possession of false Weight or Measure

By virtue of S.266 whoever is in possession of any instrument for weighing, or of any

weight, or of any measure of length or capacity, which he knows to be false, intending that

the same may be fraudulently used, shall be punished with imprisonment of either

description for a term which may extend to one year, or with fine, or with both.

4. Making or Selling false Weight or Measure

By virtue of S.267 whoever makes, sells or disposes of any instrument for weighing,

or any weight, or any measure of length of capacity which he knows to be false, in order

that the same may be used as true, or knowing that the same is likely to be used as true,

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shall be punished with imprisonment of either description for a term which may extend to

one year, or with fine, or with both.

TOPIC 7

OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY, CONVENIENCE,

DECENCY AND MORALS

Chapter 14 of the Code deals with offences affecting the public health, safety,

convenience, decency and morals.

Public nuisance

According to S. 268 a person is guilty of a public nuisance who does not act or is

guilty of an illegal omission which causes any common injury, danger or annoyance

to the public or to the people in general who dwell or occupy property in the vicinity,

or which must necessarily cause injury, obstruction, danger or annoyance to persons

who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or

advantage.

Negligent act likely to spread infection of disease dangerous to life

S. 269 provides that whoever unlawfully or negligently does any act which is,

and which he knows or has reason to believe to be, likely to spread the infection of

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any disease dangerous to life, shall be punished with imprisonment of either

description for a term which may extend to six month, or with fine, or with both.

Malignant act likely to spread infection of disease dangerous to life

S. 270 provides that whoever malignantly does any act which is, and which he

knows or has reason to believe to be, likely to spread the infection of any disease

dangerous to life, shall be punished with imprisonment of either description for a

term which may extend to two years, or with fine, or with both.

Disobedience to quarantine rule

S. 271 states that whoever knowingly disobeys any rule made and promulgated

[by the Government for putting any vessel into a state of quarantine, or for regulating

the intercourse of vessels in a state of quarantine with the shore or with other vessels,

or for regulating the intercourse between places where an infectious disease prevails

and other places, shall be punished with imprisonment of either description for a

term which may extend to six months, or with fine, or with both.

Adulteration of food or drink intended for sale

According to S. 272 whoever adulterates any article of food or drink, so as to

make such article noxious as food or drink, intending to sell such article as food or

drink, or knowing it to be likely that the same will be sold as food or drink, shall be

punished with imprisonment of either description for a term which may extend to six

months, or with fine which may extend to one thousand rupees, or with both.

Sale of noxious food or drink

Subs. by the A.O. 1937, for “by the G. of I., or by any Government”.

119

By virtue of S. 273 whoever sells, or offers or exposes for sale, as food or drink, any

article which has been rendered or has become noxious, or is in a state unfit for food or

drink, knowing or having reason to believe that the same is noxious as food or drink, shall

be punished with imprisonment of either description for a term which may extend to six

months, or with fine which may extend to one thousand rupees, or with both.

Adulteration of drugs

S. 274 provides that whoever adulterates any drug or medical preparation in

such a manner as to lessen the efficacy or change the operation of such drug or

medical preparation, or to make it noxious, intending that it shall be sold or used for,

or knowing it to be likely that it will be sold or used for, any medicinal purpose, as if

it had not undergone such adulteration, shall be punished with imprisonment of

either description for a term which may extend to six months, or with fine which may

extend to one thousand rupees, or with both.

Sale of adulterated drugs

By virtue of S. 275 whoever, knowing any drug or medical preparation to have

been adulterated in such a manner as to lessen its efficacy, to change its operation, or

to render it noxious, sells the same, or offers or exposes it for sale, or issues it from

any dispensary for medicinal purposes as unadulterated, or causes it to be used for

medicinal purposes by any person not knowing of the adulteration, shall be punished

with imprisonment of either description for a term which may extend to six months,

or with fine which may extend to one thousand rupees, or with both.

Sale of drug as a different drug or preparation

S. 276 provides that whoever knowingly sells, or offers or exposes for sale, or

issues from a dispensary for medicinal purposes, any drug or medical preparation, as

a different drug or medical preparation, shall be punished with imprisonment of

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either description for a term which may extend to six months, or with fine which may

extend to one thousand rupees, or with both.

Fouling water of public spring or reservoir

According to S. 277 whoever voluntarily corrupts or fouls the water of any

public spring or reservoir, so as to render it less fit for the purpose for which it is

ordinarily used, shall be punished with imprisonment of either description for a term

which may extend to three months, or with fine which may extend to five hundred

rupees, or with both.

278. Making atmosphere noxious to health

S. 278 provides that whoever voluntarily vitiates the atmosphere in any place so as to

make it noxious to the health of persons in general dwelling or carrying on business in the

neighbourhood or passing along a public way, shall be punished with fine which may

extend to five hundred rupees.

Rash driving or riding on a public way

According to S. 279 whoever drives any vehicle, or rides, on any public way in a manner so

rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any

other person, shall be punished with imprisonment of either description for a term which

may extend to six months, or with fine which may extend to one thousand rupees, or with

both.

Rash navigation of vessel

By virtue of S. 280 whoever navigates any vessel in a manner so rash or negligent as

to endanger human life, or to be likely to cause hurt or injury to any other person, shall be

punished with imprisonment of either description for a term which may extend to six

months, or with fine which may extend to one thousand rupees, or with both.

121

Exhibition of false light, mark or buoy

S. 281 provides that whoever exhibits any false light, mark or buoy, intending or

knowing it to be likely that such exhibition will mislead any navigator, shall be punished

with imprisonment of either description for a term which may extend to seven years, or

with fine, or with both.

Conveying person by water for hire in unsafe or overloaded vessel

S. 282 provides that whoever knowingly or negligently conveys, or causes to be

conveyed for hire, any person by water in any vessel, when that vessel is in such a state or

as loaded as to endanger the life of that person , shall be punished with imprisonment or

either description for a term which may extend to six months, or with fine which may

extend to one thousand rupees, or with both.

Danger or obstruction in public way or line of navigation

According to S. 283 whoever, by doing any act, or by omitting to take order with any

property in his possession or under his charge, causes danger, obstruction or injury to any

person in any public way or public line of navigation, shall be punished with fine which

may extend to two hundred rupees.

Negligent conduct with respect to poisonous substance

S. 284 provides that whoever does, with any poisonous substance, any act in a manner

so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any

person,

Or knowingly or negligently omits to take such order with any poisonous substance in his

possession as is sufficient to guard against any probable danger to human life from such

poisonous substance,

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Shall be punished with imprisonment of either description for a term which may extend to

six months, or with fine which may extend to one thousand rupees, or with both.

Negligent conduct with respect to fire or combustible matter

By virtue of S. 285 whoever does, with fire or any combustible matter, any act so

rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any

other person,

Or knowingly or negligently omits to take such order with any fire or any combustible

matter in his possession as is sufficient to guard against any probable danger to human life

from such fire or combustible matter,

Shall be punished with imprisonment of either description for a term which may extend to

six months, or with fine which may extend to one thousand rupees, or with both.

Negligent conduct with respect to explosive substance

According to S. 286 whoever does, with any explosive substance, any act so rashly or

negligently as to endanger human life, or to be likely to cause hurt or injury to any other

person,

Or knowingly or negligently omits to take such order with any explosive substance in his

possession as is sufficient to guard against any probable danger to human life from that

substance,

Shall be punished with imprisonment of either description for a term which may extend to

six months, or with fine which may extend to one thousand rupees, or with both.

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Negligent conduct with respect to machinery

S. 287 provides that whoever does, with any machinery, any act so rashly or

negligently as to endanger human life or to be likely to cause hurt or injury to any other

person,

Or knowingly or negligently omits to take such order with any machinery in his possession

or under his care as is sufficient to guard against any probable danger to human life from

such machinery,

Shall be punished with imprisonment of either description for a term which may extend to

six months, or with fine which may extend to one thousand rupees, or with both.

Negligent conduct with respect to pulling down or repairing buildings

By virtue of S. 288 whoever, in pulling down or repairing any building, knowingly or

negligently omits to take such order with that building as is sufficient to guard against any

probable danger to human life from the fall of that building, or of any part thereof, shall be

punished with imprisonment of either description for a term which may extend to six

months, or with fine which may extend to one thousand rupees, or with both.

Negligent conduct with respect to animal

S. 289 provides that whoever knowingly or negligently omits to take such order with

any animal in his possession as is sufficient to guard against any probable danger to human

life, or any probable danger of grievous hurt from such animal, shall be punished with

imprisonment of either description for a term which may extend to six months, or with fine

which may extend to one thousand rupees, or with both.

Punishment for public nuisance in cases not otherwise provided for

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According to S. 290 whoever commits a public nuisance in any case not otherwise

punishable by this Code, shall be punished with fine which may extend to two hundred

rupees.

Continuance of nuisance after injunction to discontinue

By virtue of S. 291 whoever repeats or continues a public nuisance, having been

enjoined by any public servant who has lawful authority to issue such injunction not to

repeat or continue such nuisance, shall be punished with simple imprisonment for a term

which may extend to six months, or with fine, or with both.

1[292. Sale, etc., or obscene books, etc.: -

2[(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing,

painting, representation, figure or any other object, shall be deemed to be obscene if

it is lascivious or appeals to the prurient interest or if its effect, or (where it

comprises two or more distinct items) the effect of any one of its items, is, if taken as

a whole, such as to tend to deprave and corrupt persons who are likely, having regard

to all relevant circumstances, to read, see or hear the matter contained or embodied in

it.]

3[(2)] Whoever—

(a) Sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation,

or for purposes of sale, hire, distribution, public exhibition or circulation, makes,

produces or has in his possession any obscene book, pamphlet, paper, drawing,

painting, representation or figure or any other obscene object whatsoever, or

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(b) Imports, exports or conveys any obscene object for any of the purposes aforesaid, or

knowing or having reason to believe that such object will be sold, let to hire,

distributed or publicly exhibited or in any manner put into circulation, or

or has reason to believe that any such obscene objects are, for any of the purposes

aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly

exhibited or in any manner put into circulation, or

(d) Advertises or makes known by any means whatsoever that any person is engaged or

is ready to engage in any act which is an offence under this section, or that any such

obscene object can be procured from or through any person, or

(e) Offers or attempts to do any act which is an offence under this section,

Shall be punished 4[on first conviction with imprisonment of either description for a term

which may extend to two years, and with fine which may extend to two thousand rupees,

and, in the event of a second or subsequent conviction, with imprisonment of either

description for a term which may extend to five years, and also with fine which may extend

to five thousand rupees].

Exception—This section does not extend to—

(a) Any book, pamphlet, paper, writing, drawing, painting, representation or figure—

(i) The publication of which is proved to be justified as being for the public good on the

ground that such book, pamphlet, paper, writing, drawing, painting, representation or

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figure is in the interest of science, literature, art of learning or other objects of

general concern, or

(ii) Which is kept or used bona fide for religious purposes;

(b) Any representation sculptured, engraved, painted or otherwise represented on or in—

(i) Any ancient monument within the meaning or the Ancient Monuments and

Archaeological Sites and Remains Act, 1958 (24 of 1958), or

(ii) Any temple, or on any car used for the conveyance of idols, or kept or used for any

religious purpose.

292A. Printing etc. of grossly indecent or scurrilous matter or matter intended for

blackmail: -Whoever, -

(a) Prints or causes to be printed in any newspaper, periodical or circular, or exhibits or

causes to be exhibited, to public view or distributes or causes to be distributed or in

any manner puts into circulation any picture or any printed or written document

which is grossly indecent, or in scurrilous or intended for blackmail, or

(b) Sells or lets for hire, or for purposes of sale or hire makes, produces or has in his

possession, any picture or any printed or written document which is grossly indecent

or is scurrilous or intended for blackmail; or

is scurrilous or intended for blackmail knowing or having reason to believe that such

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picture or document will be printed, sold, let for hire distributed or publicly exhibited

or in any manner put into circulation; or

(d) Takes part in, or receives profits from, any business in the course of which he knows

or has reason to believe that any such newspaper, periodical, circular, picture or other

printed or written document is printed, exhibited, distributed, circulated, sold, let for

hire, made, produced, kept, conveyed or purchased; or

(e) Advertises or makes known by any means whatsoever that any person is engaged or

is ready to engage in any Act which is an offence under this section, or that any such

newspaper, periodical, circular, picture or other printed or written document which is

grossly indecent or is scurrilous or intended for blackmail, can be procured from or

through any person; or

(f) Offers or attempts to do any act which is an offence under this section *[shall be

punished with imprisonment of either description for a term which may extend to

two years, or with fine, or with both.

Provided that for a second or any subsequent offence under this section, he shall be

punished with imprisonment of either description for a term which shall not be less than six

months *[and not more than two years].

Explanation I—For the purposes of this section, the word scurrilous shall be deemed to

include any matter which is likely to be injurious to morality or is calculated to injure any

person:

Provided that it is not scurrilous to express in good faith anything whatever respecting the

conduct of—

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(i) A public servant in the discharge of his public functions or respecting his character,

so far as his character appears in that conduct and no further; or

(ii) Any person touching any public question, and respecting his character, so far as his

character appears in that conduct and no further.

Explanation II—In deciding whether any person has committed an offence under this

section, the Court shall have regard inter alia, to the following considerations-

(a) The general character of the person charged, and where relevant the nature of his

business;

(b) The general character and dominant effect of the matter alleged to be grossly

indecent or scurrilous or intended for blackmail;

intention in committing any of the acts specified in this section.

Sale, etc., of obscene objects to young person

According to S. 293 whoever sells, lets to hire, distributes, exhibits or circulates

to any person under the age of twenty years any such obscene object as is referred to

in the last preceding section, or offers or attempts so to do, shall be punished [on first

conviction with imprisonment of either description for a term which may extend to

three years, and with fine which may extend to two thousand rupees, and, in the

event of a second or subsequent conviction, with imprisonment of either description

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for a term which may extend to seven years, and also with fine which may extend to

five thousand rupees]

Obscene acts and songs

By virtue of S. 294 whoever, to the annoyance of others-

(a) Does any obscene act in any public place, or

(b) Sings, recites or utters any obscene song, balled or words, in or near any public

place,

Shall be punished with imprisonment of either description for a term which may extend to

three months, or with fine, or with both.]

294A. Keeping lottery office

S. 294 A states that whoever keeps any office or place for the purpose of

drawing nay lottery [not being [a State lottery]

or a lottery authorized by the

Subs. by Act 36 of 1969, sec.2 for certain words.

Subs. by Act 8 of 1925, sec.2, for the original section.

Subs. by Act 3 of 1895, sec.3 for the original section.

Subs. by Act 3 of 1951, sec.3 and sch., for “a lottery organized by the Central Government or the Government of a Part B

State”.

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[State]

Government]

, shall be punished with imprisonment of either description

for a term which may extend to six months, or with fine, or with both.

And whoever publishes any proposal to pay any sum, or to deliver any goods, or to do or

forbear doing anything for the benefit of any person, on any event or contingency relative

or applicable to the drawing of any ticket, lot, number of figure in any such lottery, shall be

punished with fine which may extend to one thousand rupees.]

CHAPTER XV

OF OFFENCES RELATING TO RELIGION

Injuring or defiling place of worship with intent to insult the religion of any class

S. 295 states that whoever destroys, damages or defiles any place of worship, or

any object held sacred by any class of persons with the intention of thereby insulting the

religion of any class of persons or with the knowledge that any class of persons is likely to

consider such destruction, damage or defilement as a insult to their religion, shall be

punished with imprisonment of either description for a term which may extend to two

years, or with fine, or with both.

[295A. Deliberate and malicious acts, intended to outrage religious feelings or any

class by insulting its religion or religious beliefs

S. 295 A states that whoever, with deliberate and malicious intention of

outraging the religious feelings of any class of [citizens of India]

, [by words, either

spoken or written, or by signs or by visible representations or otherwise]

, insults or

Subs. by the A.O.1950, for “Provincial”.

Subs. by the A. O. 1937, for “not authorized by Government”.

Ins. by Act 27 of 1870, sec. 10.

Subs. by the A.O. 1950, for “His Majesty’s subjects”.

Subs. by Act 41 of 1961, s. 3, for certain words.

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attempts to insult the religion or the religious beliefs of that class, shall be punished

with imprisonment of either description for a term which may extend to [three

years]

, or with fine, or with both.]

296. Disturbing religious assembly

According to S. 296 whoever voluntarily causes disturbance to any assembly

lawfully engaged in the performance of religious worship, or religious ceremonies, shall be

punished with imprisonment of either description for a term which may extend to one year,

or with fine, or with both.

297. Trespassing on burial places, etc.

By virtue of S. 297 whoever, with the intention of wounding the feelings of any

person, or of insulting the religion of any person, or with the knowledge that the feelings of

any person are likely to be wounded, or that the religion or any person is likely to be

insulted thereby,

Commits any trespass in any place of worship or on any place of sepulture, or any place set

apart from the performance of funeral rites or as a depository for the remains of the dead, or

offers any indignity to any human corpse, or causes disturbance to any persons assembled

for the performance of funeral ceremonies,

Subs. by Act 41 of 1961, s. 3, for “two years”.

Ins. by Act 25 of 1927, s. 2.

132

Shall be punished with imprisonment of either description for a term which may extend to

one year, or with fine, or with both.

298. Uttering, words, etc., with deliberate intent to wound the religious feelings of

any person

According to S. 298 whoever, with the deliberate intention of wounding the religious

feelings of any person, utters any word or makes any sound in the hearing of that person or

makes any gesture in the sight of that person or places any object in the sight of that person,

shall be punished with imprisonment of either description for a term which may extend to

one year, or with fine, or with both.

TOPIC 5

OFFENCES AGIANS HUMAN BODY

CULPABLE HOMICIDE AND MURDER

Culpable Homicide (Section 299)

Homicide is not defined in the Code. It means killing of a human being by another

human being. It is considered to be the greatest injury that one can cause to another.

Homicide is divided onto:-

Lawful Homicide

Unlawful Homicide

1. Lawful Homicide

It is divided into

(a) Excusable Homicide

(i) When the death is caused by an accident, it is excusable. (eg) A is at work with a

hatchet; the head flies off and kills a man standing nearby. Here if A has been careful, then

his act is excusable and not an offence.

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(ii) Death caused by person of unsound mind, intoxicated or an infant (below 7 years) is

also excusable.

(b) Justifiable Homicide

If the death is caused by a person who is bound by law or who by mistake

of fact believes himself to be bound by law, it is not offence eg, A solider fires into a mob

by the order if his superior in conformity with the commands of the law. B.C.& D in the

mob are killed. A has committed no offence.

2. Unlawful Homicide

It is divided into 2 types:

(a) Culpable Homicide

(b) Murder or culpable Homicide amounting to murder.

Culpable Homicide,(S.299)

Definition

“Whoever causes death by doing an act with the intention of causing death, or with

the intention or causing such bodily injury as is likely to cause death, or with the

knowledge that he is likely by such act to cause death, commits the offence of Culpable

Homicide.”

Essentials

Causing death of a person by doing an act:-

1. With intention of causing death

2. With intention of causing such bodily injury as is likely to cause death.

3. With the knowledge that he is likely to cause death by his act.

Illustration

1. Intention to Cause Death

(i) A lays sticks over a pit with intention of causing B’s death. B believing the ground

to be firm walks on it and falls in and is killed. A commits “Culpable Homicide”

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(ii) A knows Z is behind the bush. B does not know it. A intending to cause Z’s death

induces B to fire at the bush. B fires and kills Z. Here A has committed Culpable Homicide.

2. Intention to cause such Bodily Injury as is Likely to cause Death

A intentionally gives Z a sword cut or club wound in the vital part of his body which

is likely to cause his death. A has committed culpable homicide.

3. With knowledge that Death is the Likely Result

A knows Z is behind the bush. B does not know it. A knowing it to be likely to cause

Z’s death, induces B to fire at the bush. A has committed culpable homicide.

Explanation

(i) If the offender causes bodily injury to a person who is suffering from some bodily

disorder, so as to accelerate the death of the person, then the offender has committed

culpable homicide.

E.g. A is suffering from high fever. B intending to cause his death, administers large

doses of opium which accelerates A’s death. B commits culpable homicide.

(ii) If a person causes bodily injury to a person and does not resort to proper remedies

in order to prevent his death, then he commits culpable homicide.

E.g. A deliberately inflicts an injury to B, likely to result in death by lock-jaw. He also

does not allow a doctor to cure him to prevent his death. B dies. Here A has committed

culpable homicide.

(iii) Causing death of a child in mother’s womb is not homicide. But if the death is

caused to a child living, or is just being born or emerged partially from the womb and has

not even breathed, then it amounts to culpable homicide.

According to Section 301, if death is caused to a person not intended, ie if A intends

to kill B but by mistake kills C then it is not an excuse and A is guilty of culpable homicide.

Under the doctrine of ‘Transfer of Malice’ the person is liable because he had the criminal

intention to kill B.

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Thus the concept of ‘Mensrea’ is an important element for life and fine, if the offence

committed is under clause 1 and 2 but if the offence committed is under clause 2 the

punishment is for 10 years or fine or both.

Proof of Culpable Homicide

1. There should be death of the victim

2. Such death must have been by the act of the accused.

3. The accused must have caused death in any one of the three ways:-

a) Intentional causing death

b) Intentional causing death of such bodily injury as is likely to cause death.

c) With knowledge that his act would cause death.

In Atmer Singh v. State

, the court held that the accused committed the offence of culpable

homicide.

In Ramesh Kumar v. State of Bihar

, two accused persons attacked the deceased with

kicks and fist blows. The death resulted due to shock, haemorrhage and strangulation. The

accused did not use lathi, knife or fire arm which they possessed at the time of incident.

These accused were held liable for culpable homicide and not for murder.

In Reg v. Govinda

, the accused knocked his wife down put one knee on her chest,

strode her two or three violent blows on the face with a closed fist causing extra vision of

blood resulting in her death. Held the accused was guilty of culpable homicide.

In State v, Bhanu Sattu

, a stuffed cloth into the mouth of B in order to silence him,

not with intention to kill him. B dies due to suffocation. Held, it could be presumed that A

knows that he was likely to cause death of B in so doing, so was liable for culpable

homicide.

Punishment

AIR1955 Punjab 13.

AIR1993 SC 2317.

ILR 2 Bom. 342.

AIR 1956 Bom. 609.

136

By virtue of S.304 of the Code, whoever, commits culpable homicide not amounting

to murder shall be punished with imprisonment for life or imprisonment of either

description for a term which may extend to 10 years and shall also be liable to fine.

Murder or Culpable Homicide Amounting to Murder

1. Murder (s. 300)

Murder is dealt with Section 300 of the I.P.C. The Section lays down the

circumstances under which culpable homicide amounts to murder. Culpable homicide

amounts to murder because of a relatively higher degree of mental intention to cause the

death of the victim.

Essentials

Murder is committed in anyone of the following ways.

1. Causing death with the intention of causing death

2. Causing death by causing such bodily injury as the offender knows to be likely to cause

death.

3. Causing death with the intention of causing bodily injury to any person sufficient in the

ordinary course of nature to cause death.

4. The person committing the act knows that his act is imminently dangerous that it must,

in all probably cause death or such bodily injury as is likely to cause death.

Illustrations

1. Causing death with intention to cause death:

(a) A shoots Z through his head, with intention of killing him. Z dies in consequence. A has

committed murder.

(b) A under the influence of passion excited by a provocation given by Z, intentionally

kills Y, Z’s child. This is murder.

to take advantage of B’s rage and cause him to kill Z, puts his knife into B’s hand for that

purpose, B kills Z with the knife. Here B may have committed only culpable homicide but

A has committed murder.

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(d) Z is suffering from a disease A knows this and gives a blow to cause his death. He

caused bodily injury to Z and Z dies. A is punishable for murder.

(e) A, without any excuse, fires a loaded gun into a crowd of person and kills one of them.

A is guilty of murder, though he did not intend to kill any particular person.

2. Causing bodily injury which is sufficient in the ordinary course of time to cause death:

Illustration

A intentionally gives Z a sword cut or club wound sufficient to cause the death if a man

in the ordinary cause of nature. Z dies in consequence. Here A is guilty of murder, although

he may not have intended to cause Z’s death.

3. With the knowledge of doing an act which is so imminently dangerous that it must in all

probability cause death or such bodily injury as is likely to cause death.

Illustration

A without any excuse fires a loaded gun into a crowd of persons and kills one of them.

A is guilty of murder although he had no pre-plan to kill anyone particularly. (The

punishment for murder is therefore grave i.e. death or life imprisonment and fine)

In Jagpal Singh v. State of Punjab

, the court held that the accused was clearly guilty

of murder as he had intentionally caused the vital injuries to the deceased.

In B.N. Srikantish v. Mysore State

, the accused inflicted shot injury with a 12 bore

gun fired a short range. The injury was inflicted intentionally. The doctor opined that the

injury was sufficient in the ordinary course of nature to cause death. Held the accused is

liable for murder.

In State of M.P v. Ram Prasad

, the accused set fire to the clothes of the deceased.

The death resulted from burn injuries. It was held that the accused was liable for be

punished for murder.

In State of U.P v. Virendra Prasad,

it was held that it must be proved that there was

an intention to inflict that particular bodily injury which, in the ordinary course of nature,

AIR 1986 SC 683.

AIR 1982 SC 672.

AIR 1968 SC 881.

2004 (1) KLJ 742.

138

was sufficient to cause death viz. that the injury found to be present was the injury that was

intended to be inflicted. Thus, even if the intention of the accused was limited to the

infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and

did not extend to the intention of causing death, the offence would be murder.

Difference between Culpable Homicide and Murder

The difference between culpable homicide and murder has been decided from the

leading case Reg. v. Govinda. In this case the accused knocked his wife down and by

putting a knee on her chest and giving fatal blow with his wrist caused her death. Since

there was no intention to cause death and also the bodily injury was not sufficient in the

ordinary course of nature to cause death, he was held guilty of only culpable homicide.

Distinction between Culpable Homicide and Murder

Culpable homicide Murder

Section 299 Section 300

A person commits culpable homicide A person commits murder (subject

If the act by which the death is caused to certain exceptions) if the act by

Is done- which death is caused is done

With intention of causing death With the intention of causing death.

With the intention of causing such With intention of causing such

bodily injury as is likely to cause bodily injury as the offender knows

injury death. to be likely to cause death of the

person to whom the harm is caused.

With the intention of causing bodily

injury to any person and it is

sufficient in the ordinary course of

nature to cause death.

Knowledge

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With the knowledge that the act is With the knowledge that the act is so

likely to cause death. imminently dangerous that it must in

all probability cause death or such

Bodily injury as is likely to cause

death.

Death is the probable result Death is most probable result

Whether the offence is culpable homicide or murder depends upon the degree of risk

to human life. If death is the likely result, it is culpable homicide if it the most probable

result it is murder.

In this case of bodily injury the offence is culpable homicide if the bodily injury is

likely to cause death, and the offence is murder. If the injury is sufficient in the ordinary

course of nature to cause death.

For an offence to be classified as ‘Murder’ or ‘culpable homicide’ the problem must

be approached in three stages:

1. Whether death is caused by the act done by the person

2. Whether the act amounts to culpable homicide sec 299 or murder Sec 300, is the next

stage

3. If the offence can be brought under any of the clauses of Section 300, it is murder.

Culpable Homicide not Amounting to Murder or Exceptions to Murder or Murder Reduced

to Culpable Homicide

Introduction

Section 300 has got 5 exceptions. In these exceptions murder is reduced to culpable

homicide. It is otherwise called culpable homicide not amounting to murder. These are not

total defence like general defences i.e. insanity consent etc.

Exceptions

a) Grave and sudden provocation

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b) Exceeding the right of private of defence

c) Public servant exceeding his powers

d) Death caused by sudden fight

e) Consent

In all these cases, though the offence committed is actually ‘Murder’ because of the

presence of certain extenuating circumstances in the commission of the offence, the law

takes a lenient view and convicts the accused with a reduced punishment i.e. it considers

the offence ‘culpable homicide’ not amounting to murder and punishment for the offender

is life imprisonment for 10 years and or fine.

(a)Grave and Sudden Provocation

Due to sudden and grave provocation if the offender loses his control and causes the

death of the person who gave the provocation or any other person by mistake or accident,

then it is not murder but is reduced to culpable homicide.

Essentials

1. The accused must be deprived of the power of self control

2. The death should be caused only of grave and sudden provocation

3. The person who caused provocation must be killed or any other person by mistake or

accident.

Proviso

1. There is no provision for provocation against a public servant who acts in the lawful

exercise of power.

2. There is no provision for provocation against anything done in obedience of law.

3. There is no provision for provocation by anything done in the lawful exercise of

private defence.

4. Provocation should not be voluntarily caused by the offender as an excuse for killing

another.

Explanation

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Whether the provocation was grave and sudden is a question of fact and it is decided

by nature and circumstances of each case.

Illustration

1. Y gives provocation to A. Because of this provocation by Y, A fires at Y by a pistol lent

by Z, Y dies. Here as A has acted under the sudden and grave provocation, he is liable for

culpable homicide not amounting to murder but as Z abetted the act, he is liable for

abetment of murder.

2. A is lawfully arrested by Z. A is provoked of arrest and kills Z. This is only culpable

homicide amounting to murder as sudden and grave provocation cannot be exercised

against a person acting under lawful authority.

3. A attempts to pull Z’s nose in the exercise of private defence, lays hold of A to

prevent him from doing so. A gets sudden and grave provocation and kills Z. this is only

culpable homicide amounting to murder as provocation cannot be caused against a person

acting in the lawful exercise of private defence.

Provocation by Adulterous Intercourse

Commission of adultery by wife within the sight of her husband is a sufficient grace

provocation. But there should not be lapse of time between the provocation and the act of

killing by the husband because time would cool his feelings. The question whether the plea

of provocation is available if the woman happens to be other than the wife- the view vary

from one High court to another. The Madras High court, Allahabad and Bombay are of the

view that the plea of provocation extends to wife, married sister and mother. But according

to the Calcutta and Patna High Courts, the provocation is limited to husband and wife.

In Nanavati v. State of Maharashtra

, Nanavati was a commander in the Indian navy.

His wife Sylvia confessed to Nanavati of her illicit intimacy with Ahuja, a businessman.

After 3 hours Nanavati shot Ahuja dead in the latter’s bed. There was a lapse of 3 hours

between the act of provocation and the killing. Hence the High court of Bombay sentenced

him for life imprisonment under Section 302. In the appeal SC confirmed the HC verdict.

AIR 1962 SC 604

142

b) Exceeding the Right of Private Defense

Culpable homicide is not murder, if the offender in the exercise of good faith of the

right of private defense of person or property, exceeds the power given to him by law and

causes the death of the person without any intention of doing more harm than necessary.

Essentials

1. The accused must have got the right of private defense.

2. This right should be exercised in good faith.

3. The accused must exceed the legal limits of private defense.

4. The private defense extends to both body and property.

5. The death of the person must be caused without pre-plan or premeditation.

6. The death of the person must be caused without any intention of doing more harm than

necessary.

Illustrations

1. Z attempts to horsewhip A. A draws out a pistol. Even then Z continues to whip A.

A in good faith finds no other way to prevent himself from being whipped. A shot Z dead.

A has committed only culpable homicide not amounting to murder under Section 300

exception 2

2. B a thief enters into A’s house through a hole in the wall. B sees A so tries to

escape through the hole in the wall. A obtain a weapon and kills him. This is culpable

homicide amounting to murder only.

In Rafiq v. State of Maharashtra, K attacked R with stick. R then took a knife and

stabbed K causing grievous injury to K's heart resulting in death of K. Held R was acting in

exercise of his right of private defense but exceeded that right by stabbing K in heart. R is

liable for culpable homicide not amounting to murder.

In Ganashan Das v. State

,deceased committed criminal trespass. He was not armed.

Accused attacked the deceased with a weapon and caused two injuries which cut the heart

and lung and resulted in his death. Held the accused exceeded his right of private defense of

AIR 1979.

143

property by using dangerous weapon. Hence he was guilty of culpable homicide not

amounting to murder.

In Sampat Singh v. State of Rajasthan

100

, the deceased was sitting on the chest of

Shyamal, brother of the accused. The accused in order to save his brother, inflicted with a

weapon, which caused his death. He was held liable for culpable homicide not amounting

to murder as he had exceeded his right of private defense.

c) Public Servant Exceeding his Power

If a public servant or a person aiding a public servant while doing an act of justice

under the lawful power causes the death of the person, then it is culpable homicide not

amounting to murder. The public servant must act in good faith and in due discharge of his

duty without ill-will towards the person whose death is caused.

Essentials

1. The offender should be a public servant or a person aiding a public servant.

2. The offender should exceed his legal powers.

3. The act must cause the death of the deceased in good faith and due to necessity for the

due discharge of his duties.

4. There should not be any ill or hatred towards the person killed.

Illustration

A, a police officer arrests Z, for the offence of theft. Z escapes and runs. A chases and

kills him, by shooting (by exceeding his legal power) A is punishable for culpable homicide

not amounting to murder under Section 300 (exception 3)

In Dakhi Singh v. State

101

, a suspected thief was arrested by a police officer. He

escaped by jumping down from the train from its off-side. The police officer was not in a

position to arrest him. He shot at him but the bullet hit the fireman and he died. Held the

accused is guilty of culpable homicide.

100

AIR1969 SC 956.

101

AIR 1955.

144

d) Death caused by Sudden Fight

Here the death should be caused during a sudden fight, in the heat of passion upon a

sudden quarrel and without the offender having taken undue advantage or acted in a cruel

manner. The fight must not be pre arranged and there should not be sufficient time for the

passion to subside.

Essentials

1. Sudden fight must be out of a sudden quarrel.

2. Death must be caused in sudden fight.

3. Death must be caused in sudden fight.

4. Death must be caused without pre-plan or premeditation.

5. There should not be any undue advantage or cruelty or unusual method adopted.

Illustration

A and B enter into a sudden fight, out of a sudden quarrel. A kills B without any

premeditation. A is punishable for culpable homicide not amounting to murder under Sec.

300 (exception 4)

In Babulal v. State of Rajasthan, the quarrel arose all of a sudden. The accused caused

only one injury with a pair of scissors which resulted in death. The accused did not take

away undue advantage or not acted in a cruel or abused manner. Held that the death was

caused in the heat of passion and thus the offence was culpable homicide not amounting to

murder.

e) Consent

If death is caused to person who is above 18 years of age and who has given his

consent for the risk of death, then it is culpable homicide not amounting to murder.

Essentials

1. Death must be caused with the consent of the deceased.

2. The deceased must be above 18 years of age.

3. The consent must be free and voluntary and not given under fear or misconception.

145

Illustrations

1. A wounded solider requests his friend to shoot him to death so as to relieve him of the

agony and pain. His friend does so. This is culpable homicide not amounting to murder.

2. A by instigation voluntarily causes Z a person under 18 years of age to commit

suicide. Z commits suicide. Here A is guilty of abetment for murder.

In Bandan Singh v. State of Punjab

102

, the Supreme Court again considered the

constitutional validity of death sentence. It was declared to be constitutionally valid and

decided to retain the death sentence.

DOWRY DEATH

S. 304-B Dowry Death. (1) Where the death of a woman is caused by any burns or bodily

injury or occurs otherwise than under normal circumstances within seven years of her

marriage and it is shown that soon before her death she was subjected to cruelty or

harassment by her husband or any relative of her husband for, or in connection with, any

demand for dowry, such death shall be called ‘dowry death’, and such husband or relative

shall be deemed to have caused her death.

Explanation. For the purpose of this sub-section, ‘dowry’ shall have the same meaning as

in section 2 of the Dowry Prohibition Act 1961.

The offence of dowry death has been included in the IPC as S.304–B by the Dowry

Prohibition Act 1986. S.304–B has been inserted with a view to curb the growing atrocities

against woman, where thousand of young women were being done to death due to failure to

pay up the dowry demanded. The Amending Act of 1986 has also made several

consequential amendments in the Code of Criminal Procedure 1973 and the Indian

Evidence Act 1872 in order to make the prosecution of offenders in cases of dowry death

more effective.

The essential ingredients of S. 304-B are as follows:

102

AIR 1980.

146

(1) The death of a woman should be caused by burns or bodily injury or otherwise than

under normal circumstances ;

(2) Such a death should have occurred within seven years of her marriage;

(3) She must have been subjected to cruelty or harassment by her husband or any relative

of her husband;

(4) Such cruelty or harassment should be for or in connection with the demand for dowry;

(5) Such cruelty or harassment is shown to have been meted out to the woman soon

before her death.

103

DEMAND FOR DOWRY

The main component of S. 304-B is that the death of the woman should not only be under

the circumstances specified in the section, but should also be the consequence of demands

for dowry. Only then will this provision will apply. According to the explanation to S. 304-

B, the term ‘dowry’ shall have the same meaning as in S. 2 of the Dowry Prohibition Act

1961. The Dowry prohibition Act 1961 defines dowry as follows:

Any property or valuable security given either directly or indirectly:

(a) by one party to a marriage to the other party to the marriage; or

(b) by parents of either party to a marriage or by an another person, to either party to the

marriage or to any other person at or before or any time after the marriage in connection

with the marriage of the said parties, but does not include dower or mahar in the case of

persons to whom the Muslim personal law (Shariat) applies.

In Nunna Venkateswarlu v. State of AP

104

, the deceased had consumed pesticides and

died an unnatural death after five years of marriage. There was evidence that the girl was

tortured continuously and was harassed to sell the five acres of land gifted to her by her

father at the time of marriage and give the sale proceeds to the husband. Unable to bear the

harassment, the deceased committed suicide. Though, there was ample evidence that the

103

Keshab Chandra Pande v. State 1995 Cri LJ 174 (Ori).

104

1996 Cri. LJ 108 (A.P.)

147

demands for dowry were made, the High of Andhra Pradesh observed that the prosecution

has to prove that there was a prior agreement by the parents of the girl to the husband or

the in-laws to pay a valuable security, money etc. Unless the existence of the prior

agreement between the parties was proved, the Court held that the accused would not be

liable to be punished for an offence u/s 304-B, IPC. The High Court held that since the

demands made by the accused were not demands which were agreed to be paid by father of

the deceased at the time of the marriage, they would not amount to demands for dowry. So,

the High Court convicted the accused only u/ss 498-A and 306, IPC and not S. 304-B. The

High Court in this case seems to have been influenced by the words ‘agreed to be given’ in

the definition of dowry in the Dowry Prohibition Act 1961.

However, the above mentioned judgment of the Andhra Pradesh may not be good law in

the view of the judgment of the Supreme Court in State of HP v. Nikku Ram.

105

The

Supreme Court interestingly starts of the judgment with the words ‘Dowry, dowry and

dowry’. The Supreme Court goes onto explain why they have mentioned the words ‘dowry’

thrice. This is because demand for dowry is made on three occasions: (i) before marriage;

(ii) at the time of marriage; (iii) after the marriage. Greed being limitless, the demands

become insatiable in many cases, followed by torture on the girl leading to either suicide in

some cases or murder in some. The Supreme Court has explained in this case that though

the definition of ‘dowry’ is stated as ‘property or valuable security given or agreed to be

given….’ demands made after marriage could also be a part of a consideration because an

implied agreement has to be read to give property or valuable securities, even if asked after

the marriage as apart of consideration for the marriage. When the Dowry Prohibition Act

was enacted, the legislature was well aware of the fact that demands for dowry are made

and indeed very often even after the marriage has been solemnized, and this demand is

founded on the factum of marriage alone. Such demands therefore would also be in our

mind as consideration for marriage.

PRESUMPTION AS TO DOWRY DEATH

105

1995 Cri LJ 108 (AP).

148

At the time of introducing the offence of dowry death in the Indian Penal Code, the

legislature had simultaneously brought in amendments to the Indian Evidence Act. Section

113-B of the Indian Evidence Act provides for presumption as to dowry death. As per this

section:

When the question is whether a person has caused the dowry death of a woman and it

is shown that soon before her death such woman had been subjected by such person to

cruelty or harassment for, or in connection with, any demand for dowry, the court shall

presume that such person had caused such dowry death.

This presumption will arise only when the prosecution has established the basic

element of demand for dowry. The initial burden lies on the prosecution to prove the

ingredients of S. 304-B, including the fact that soon before her death, she had been

subjected by the accused persons to cruelty or harassment for or in connection with any

demand for dowry. If the prosecution succeeds in discharging this initial burden, then

positively the provisions of S. 113-B, Evidence Act comes into play and can be pressed

into service for drawing the presumption against the accused person that he has caused

dowry death.

106

Distinction between 304-B & 498-A

In Soni Devrajbhai Babubhai v. State of Gujarat

107

, the court observed that, S. 304 B

is a substantive provision creating a new offence and not merely a provision effecting a

change in procedure for trial of a pre-existing substantive offence. As a consequence,

accused cannot be tried and punished for the offence of dowry death provided in S. 304 B

with the minimum sentence of seven years’ imprisonment for an act done by them prior to

creation of the new offence of dowry death.

DOCTRINE OF TRANSFERRED MALICE

106

G.M Natarajan v State 1995 Cri LJ 2728 (Mad).

107

1991 Cr. LJ (313) (SC).

149

The doctrine of transferred malice is contained in sec 301 of the Code. Accordingly if

a person, by doing anything which he intends or knows to be likely to cause death, commits

culpable homicide by causing the death of any person, whose death he neither intends nor

knows himself to be likely to cause, the culpable homicide committed by the offender is of

the description of which it would have been if he had caused the death of the person whose

death he intended or knew himself to be likely to cause.

Illustration

X intends to kill Y. But his act has resulted in the death of Z, which X never intended.

Even then X will be punishable for culpable homicide or murder.

In Suryanaraynamoorthy v. State,

108

the accused intentionally gave poison to a child

(X), on whose life he had effected insurance. The child did not eat the entire poisoned

food. The remaining portion of the food was eaten by the brother in law of the accused

who was 8 years of age and another child. X recovered and the other two children died.

The accused was held liable.

In Padmanabhan v. State of Kerala,

109

the accused planned to kill another person by

his lorry. But a third person interfered in the scene which resulted in his death. The court

held that the accused is liable.

DEATH BY RASH OR NEGLIGENCE (SECTION 304 A)

In England the position is known as Manslaughter by negligence. If death is caused to

a person by the rash or negligent act of the offender, without any criminal intention or

knowledge then it is not severely punishable due to the absence of mensrea. The act should

not however amount to culpable homicide. Death due to rash and negligent act is

punishable by imprisonment for 2 years or fine or both. Rashness means an unintentional

act, but with knowledge that it may cause injury or even death to others. Criminal

negligence is an act of gross negligence or failure to exercise reasonable care and caution.

Ingredients

i) He should have caused the death of another person

108

(1912) MWL 136.

109

1988 Cr.L.J. Ker.

150

ii) The death should have been caused by doing any rash or negligent act.

iii) The act should not amount to culpable homicide.

Illustration

(1) Driving at high speed through a crowded street thereby knocking down a pedestrian and

killing him. This is a death by rash act.

(2) Knocking down and killing a pedestrian while driving along the wrong side of the road

is causing death by negligent act.

(3) Using an unsafe boat to cross a flooded river, thereby causing the death of the

passengers is also an offence under this Section.

In Ramya v. Emperor, Ramya gave her husband deadly poison believing to be love

lotion. She did this in order to increase his affection towards her. Her husband died because

of the poison. The court held that Ramya was punishable for the death of her husband by

her rash and negligent act as under 304A.

In Tapti Prasad v. Emperor, Tapti Prasad was Assistant station master at a railway

station called Bharwari. There was a collusion of trains by the wrong signalling by Tapti

Prasad. He is liable.

Dowry Death

S. 304-B (1) of the Act provides that where the death of a woman is caused by any

burns or bodily injury or occurs otherwise than under normal circumstances within seven

years of her marriage and it is shown that soon before her death she was subjected to

cruelty or harassment by her husband or any relative of her husband for, or in connection

with, any demand for dowry, such death shall be called “dowry death”, and such husband

and or relative shall be deemed to have caused her death.

Explanation

For the purposes of this sub-section, “dowry” shall have the same meaning as in

Section 2 of the Dowry Prohibition Act, 1961.

151

S. 304-B (2) of the Act provides that whoever commits dowry death shall be

punished with imprisonment for a term which shall not be less than seven years but which

may extent to imprisonment for life.

In Mulakh Raj v. Satish Kumar

110

, the deceased woman was aged only 20 years at the

time of her death. After one year and five months of her marriage, one day, she was found

dead with burnings. The husband’s contention was that it was a suicide. On post-mortem, it

was found that the wife died due to constriction (asphyxia), and after her death, with an

intention to destroy the evidence, kerosene was poured on the body and it was burnt. There

were no eye-witnesses to the incident. The trial Court gave the life imprisonment to the

husband on the basis of circumstantial evidences and the post-mortem report. On appeal to

the High Court, he was acquitted opining that there were no eye witnesses. On appeal, the

Supreme Court confirmed the judgment of the trial Court opining that the medical report

and circumstantial evidences were sufficient to prove the guilt of the accused.

In Paniben v. State of Gujarat

111

, since the marriage, mother-in-law was not satisfied

with the dowry brought by the daughter-in-law. She harassed and tortured her inhumanely.

Husband was a silent spectator. Within one year of marriage, one day, the mother-in-law

poured kerosene on her daughter-in-law, who was sleeping in her bed room. Husband and

others tried to save her. While she was taken to hospital, she told that her mother-in-law

poured kerosene on her. Before she reached the hospital, she died. The trial Court imposed

life imprisonment. The High Court acquitted the accused. On appeal, the Supreme Court

confirmed the judgment of the trial Court.

Abetment of suicide of child or insane person

By virtue of S. 305 if any person under eighteen years of age, any insane

person, any delirious person, any idiot, or any person in a state of intoxication,

commits suicide, whoever abets the commission of such suicide, shall be punished

with death or 1[ imprisonment for life]

112

, or imprisonment for a term not exceeding

ten years, and shall also be liable to fine.

110

AIR (1992) SC 1175.

111

AIR 1992 SC 1817.

112

Subs. by Act 26 of 1955, sec.117 and sch., for (transportation for life” (w.e.f. 1-1-1956).

152

Abetment of suicide

According to S. 306 if any person commits suicide, whoever abets the

commission of such suicide, shall be punished with imprisonment of either

description for a term which may extend to ten years, and shall also be liable to fine.

Attempt to murder

By virtue of S. 307 whoever does any act with such intention or knowledge, and under

such circumstances that, if he by that act caused death, he would be guilty or murder, shall

be punished with imprisonment of either description for a term which may extend to ten

years, and shall also be liable to fine, and is hurt is caused to any person by such act, the

offender shall be liable either to [imprisonment for life]

113

, or to such punishment as is

hereinbefore mentioned.

Attempts by life convicts:- when any person offending under this section is under sentence

of [imprisonment for life]

114

he may, if hurt is caused, be punished with death].

115

Illustrations.

(a) A shoots at Z with intention to kill him, under such circumstances that, if death

ensued. A would be guilty of murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of tender years, exposes it is a

desert place. A has committed the offence defined by this section, though the death

of the child does not ensure.

113

Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).

114

Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).

115

Ins. by Act 27 of 1870, sec. 11.

153

offence. A fires the gun at Z. He has committed the offence defined in this section,

and if by such firing he wounds Z, he is liable to the punishment provided by the

latter part of 3[the first paragraph of ] this section.

(d) A, intending to murder Z by poison, purchases poison and mixes the same with food

which remains in A’s keeping; A has not yet committed the offence defined in this

section. A places the food on Z’ s table or delivers it to Z’s servant to place it on Z’s

table. A has committed the offence defined in this section.

308. Attempt to commit culpable homicide

S. 308 provides that whoever does any Act with such intention or knowledge and

under such circumstances that, if he by that Act caused death, he would be guilty of

culpable homicide not amount to murder, shall be punished with imprisonment of either

description for a term which may extend to three years, or with fine, or with both, and if

hurt is caused to any person by such Act, shall be punished with imprisonment of either

description for a term which may extend to seven years, or with fine, or with both.

Illustration

A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he

thereby caused death he would be guilty of culpable homicide not amounting to murder. A

has committed the offence defined in this section.

154

309. Attempt to commit suicide

By virtue of S. 309 whoever attempts to commit suicide and does any act

towards the commission of such offence, shall be punished with simple imprisonment for

term which may extend to one year [ or with fine, or with both].

116

Thug

According to S. 310 whoever, at any time after the passing of this act, shall have

been habitually associated with any other or others for the purpose of committing

robbery or child-stealing by means of or accompanied with murder, is a thug.

Punishment

By virtue of S. 311 whoever is thug, shall be punished with [imprisonment for life]

117

and shall also be liable to fine.

Causing miscarriage

S. 312 states that whoever voluntarily causes a woman with child to miscarry, shall,

if such miscarriage be not caused in good faith for the purpose of saving the life of

the woman, be punished with imprisonment of either description for a term which

may extend to three years, or with fine, or with both, and, if the woman be quick

with child, shall be punished with imprisonment of either description for a term

which may extend to seven years, and shall also be liable to fine.

116

Subs. by Act 8 of 1882, sec.7, for “and shall also be liable to fine”.

117

Subs. by Act 26 of 1955, sec.117 and sch., for “transportation for life” (w.e.f.1-1-1956).

155

Explanation:- A woman who causes herself to miscarry, is within the meaning of this

section.

Causing miscarriage without woman’s consent

S. 313 provides that whoever commits the offence defined in the last preceding

section without the consent of the woman, whether the woman is quick with child or not,

shall be punished with [ imprisonment for life]

118

or with imprisonment of either

description for a term which may extend to ten years, and shall also be liable to fine.

Death caused by act done with intent to cause miscarriage

S. 314 states that whoever, with intent to cause the miscarriage of woman with child,

does any act which causes the death of such woman, shall be punished with imprisonment

of either description for a term may extend to ten years, and shall also be liable to fine.

If act done without woman’s consent:- And if the act is done without the consent of the

woman, shall be punished either with [imprisonment for life]

119

or with the punishment

above mentioned.

Explanation to S. 314 states that it is not essential to this offence that the offender should

know that the act is likely to cause death.

Act done with intent to prevent child being born alive or to cause it to die after birth

118

Subs. by Act 26 of 1955, sec.117 and sch., for “transportation for life” (w.e.f.1-1-1956).

119

Subs. by Act 26 of 1955, sec.117 and sch., for “transportation for life” (w.e.f. 1-1-1956).

156

According to S. 315 whoever before the birth of any child does any act with the

intention of thereby preventing that child from being born alive or causing it to die after its

birth, and does by such prevent that child from being born alive, or causes it to die after its

birth, shall, if such act be not caused in good faith for the purpose of saving the life of the

mother, be punished with imprisonment of either description for a term which may extend

to ten years, or with fine, or with both.

Causing death of quick unborn child by act amounting to culpable homicide

According to S. 316 whoever does any act under such circumstances, that if he

thereby caused death he would be guilty of culpable homicide, and does by such act cause

the death of a quick unborn child, shall be punished with imprisonment of either description

for a term which may extend to ten years, and shall also be liable to fine.

Illustration.

A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it

caused the death of the woman, would amount to culpable homicide. The woman is injured,

but does not die, but the death of an unborn quick child with which she is pregnant is

thereby caused. A is guilty of the offence defined in this section.

Exposure and abandonment of child under twelve years, by parent or person having

care of it S. 317 states that whoever being the father or mother of a child under the

age of twelve years, having the care of such child, shall expose or leave such child in

any place with the intention of wholly abandoning such child, shall be punished with

imprisonment of either description for a term which may extend to seven years; or

with fine, or with both.

157

Explanation to S. 317 state that this section is note intended to prevent the trial of the

offender for murder or culpable homicide, as the case may be, if the child die in

consequence of exposure.

Concealment of birth by secret disposal of dead body

According to S. 318 whoever, by secretly burying or otherwise disposing of the death

body of a child whether such child die before or during its birth, intentionally conceals or

endeavours to conceal the birth of such child, shall be punished with imprisonment of either

description for a term which may extend to two years, or with fine, or with both.

HURT AND GRIEVOUS HURT

Hurt: (Section 319)

Definition

“Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt”.

The word “pain” signifies only ‘bodily pain’ and not mental pain. The hurt caused must be

the direct result of the act. Infirmity is the inability of an organ to perform its normal

function, temporally or permanently.

The hurt must be caused voluntarily and not accidentally. The person who causes hurt

must have intention or knowledge that his act is likely to cause hurt. Hurt is equivalent to

battery in English Law. The punishment is imprisonment for 1 year or fine or both

120

Eg. A person who digs a pit in a public path, intending that another may fall into it.

In Hadia Mia v. State of Assam

121

it was held that pulling a woman by the hair was

held to be under this offence.

Voluntarily causing hurt

120

Section .323

121

1988

158

S. 321 states that whoever does any act with the intention of thereby causing hurt to

any person, or with the knowledge that he is likely thereby to cause hurt to any person, and

does thereby cause hurt to any person, is said “voluntarily to cause hurt”.

Voluntarily causing grievous hurt

According to S. 322 whoever voluntarily causes hurt, if the hurt which the intends to

cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he

causes is grievous hurt, is said “voluntarily to cause grievous hurt”.

Explanation to S. 322 states that a person is not said voluntarily to cause grievous hurt

except when he both causes grievous hurt and intends or knows himself to be likely to

cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or

knowing himself to be likely to cause grievous hurt of one kind; he actually causes grievous

hurt of another kind.

Illustration

A, intending or knowing himself to be likely permanently to disfigure Z’s face, gives

Z a blow which does not permanently disfigure Z’s face, but which cause Z to suffer

severe bodily pain for the space of twenty days. A has voluntarily caused grievous

hurt.

1. Grievous Hurt: (Section 320)

All kinds of hurt are not grievous hurt. Only the following kinds of hurt are designated

as grievous

i) It is deprivation of masculine vigour of man. This offence can be applied only

against men. Sometimes emasculation may amount to murder.

ii) Permanent privation of the sight of either eye.

iii) Permanent privation of the hearing of either ear.

159

iv) Privation of any member or joint.

v) Destruction or permanent impairing of the powers of any member or joint.

vi) Permanent disfiguration of the head or face.

vii) Fracture or dislocation of a bone or tooth.

viii) Any hurt which endangers life or which causes the sufferer to be in severe bodily

pain for 20 days or unable to follow his ordinary pursuits.

A person is said to voluntarily cause grievous hurt if he intends to cause or know

himself to be likely to cause grievous hurt. The punishment for causing grievous hurt is

imprisonment for 7 years and fine.

122

Illustration

A intending to permanently disfigure Z’s face gives or causes Z to suffer severe

bodily pain for 20 days. A has voluntarily caused grievous hurt.

In Saha Rao v. State, the accused while beating a woman several times hit the head of

the child held in her hand. The child died as a result of the blow. The court held that the

accused was guilty of causing grievous hurt.

2. Aggravated forms of Hurt and Grievous Hurt Ss 326 to 330

i) Voluntarily causing hurt or grievous hurt by weapons.

123

ii) Voluntarily causing hurt or grievous hurt for committing extortion.

124

iii) Administering poison to person.

125

iv) Voluntarily causing hurt or grievous hurt to extort confession from a victim.

126

v) Voluntarily causing hurt or grievous hurt to a public servant.

127

Illustrations

a) A, a police officer tortures Z in order to induce Z to confess that he committed a

crime.

122

Section. 325

123

Section 326.

124

Section327.

125

Section328.

126

Section 329.

127

Section 330.

160

b) A, a revenue officer tortures Z in order to compel him to pay certain arrears of

revenue due from Z

c) A, a zamindar tortures a tenant in order to compel him to pay his rent.

In Bhim Singh v. State of UP, the accused pulled the deceased out of a coat, kicked him and

struck him on the ribs to which the deceased whose spleen was diseased, died. The court

held that he was guilty of voluntarily causing grievous hurt.

In Naih Singh v. State of Punjab

128

, a partial cut of skull vault has been held to be a fracture

within the meaning of grievous hurt.

Voluntarily causing grievous hurt to extort confession, or to compel restoration of

property

S. 331 states that whoever voluntarily causes grievous hurt for the purpose of

extorting from the sufferer or from any person interested in the sufferer any confession or

any information which may lead to the detection of an offence or misconduct, or for the

purpose of constraining the sufferer or any person interested in the sufferer to restore or to

cause the restoration of any property or valuable security, or to satisfy any claim or demand

or to give information which may lead to the restoration of any property or valuable

security, shall be punished with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.

Voluntarily causing hurt to deter public servant from his duty

According to S. 332 whoever voluntarily causes hurt to any person being a public

servant in the discharge of his duty as such public servant, or with intent to prevent or deter

that person or any other public servant from discharging his duty as such public servant, or

in consequence of anything done or attempted to be done by that person in the lawful

discharge of his duty as such public servant, shall be punished with imprisonment of either

description for a term which may extend to three years, or with fine, or with both.

Voluntarily causing grievous hurt to deter public servant from his duty

128

AIR 1986

161

By virtue of S. 333 whoever voluntarily causes grievous hurt to any person

being a public servant in the discharge of his duty as such public servant, or with

intent to prevent or deter that person or any other public servant from discharging his

duty as such public servant, or in consequence of anything done or attempted to be

done by that person in the lawful discharge of his duty as such public servant, shall

be punished with imprisonment of either description for a term which may extend to

ten years, and shall also be liable to fine.

Voluntarily causing hurt on provocation

By virtue of S. 334 whoever voluntarily causes hurt on grave and sudden

provocation, if the neither intends nor knows himself to be likely to cause hurt to any

person other than the person who gave the provocation, shall be punished with

imprisonment of either description for a term which may extend to one month, or with fine

which may extend to five hundred rupees, or with both.

Voluntarily causing grievous hurt on provocation

According to S. 335 whoever [voluntarily]

129

causes grievous hurt on grave and

sudden provocation, if he neither intends nor knows himself to be likely to cause grievous

hurt to any person other than the person who gave the provocation, shall be punished with

imprisonment of either description for a term which may extend to four years or with fine

which may extend to two thousand rupees, or with both

Explanation: - The last two sections are subject to the same provisos as Explanation

1, section 300.

Act endangering life or personal safety of others

129

Ins. by Act 8 of 1882, sec.8.

162

By virtue of S. 336 whoever does any act so rashly or negligently as to endanger

human life or the personal safety of others, shall be punished with imprisonment of either

description for term which may extend to three months, or with fine which may extend to

two hundred and fifty rupees, or with both.

Causing hurt by act endangering life or personal safety of others

By virtue of S. 337 whoever causes hurt to any person by doing any act so

rashly or negligently as to endanger human life, or the personal safety of others, shall

be punished with imprisonment of either description for term which may extend to

six months, or with fine which may extend to five hundred rupees, or with both.

Causing grievous hurt by act endangering life or personal safety of others

According to S. 338 whoever causes grievous hurt to any person to doing any act so

rashly or negligently as to endanger human life, or the personal safety of others, shall be

punished with imprisonment of either description for a term which may extend to two

years, or with fine which may extend to one thousand rupees, or with both.

WRONGFUL RESTRAINT AND WRONGFUL CONFINEMENT

(Ss 339- 340)

1. Wrongful Restraint (Section 339)

Definition

“Whoever voluntarily obstructs any person so as to prevent that person from

proceedings in any direction in which that person has a right to proceed”

Exception

The obstruction of a private way over land or water which a person in good faith

believes to have a lawful right to obstruct is not wrongful restraint.

Essentials

163

1. Voluntary obstruction of a person.

2. Such obstruction must prevent that person from proceeding in any direction.

3. The person must have a right to proceed in any direction.

Illustrations

a) A builds a wall across a path along which Z has a right to pass Z is thereby prevented

from passing. A is guilty of wrongfully restraining Z

b) A wrongfully leaves a dangerous buffalo in a road and thus voluntarily delays Z from

passing along the road, which Z has a right to pass. A is guilty of wrongful restraint.

In Jowahir Shah v. Giridharee Chowdhry, where the accused prevented the

complainants from proceeding in a certain direction with their carts. Held that the accused

was guilty of wrongful restraint.

Punishment for Wrongful Restraint

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Simple imprisonment for a term which may extend to one month, or with fine which

may extend to five hundred rupees or both.

2. Wrongful Confinement( Section 340)

Definition

“Whoever restraints any person in such a manner as to prevent that person from

proceeding beyond certain circumscribing limits, is said wrongfully to confine that person”

Essentials

1. Wrongful restraint of a person

2. Such restraint must prevent that person from proceeding beyond circumscribing

limits.

Illustration

A puts Z in a room as a walled space and locked him in. Z is thus prevented from

proceeding in any direction beyond the line of wall. A is guilty of wrongful confinement.

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Section 341.

164

In Jay Engineering works v. State of W.B, a person is kept within the limits out of

which he wishes to go and has a right to go. Held that it amounts to wrongful confinement.

Punishment

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One year imprisonment or fine of Rs. 1000 or both.

Wrongful confinement for three or more days.

S. 343 provides that whoever wrongfully confines any person for three days, or more, shall

be punished with imprisonment of either description for a term which may extend to two

years, or with fine, or with both.

Wrongful confinement for ten or more days

According to S. 344 whoever wrongfully confines any person for ten days, or more,

shall be punished with imprisonment of either description for a term which any extend to

three years, and shall also be liable to fine.

Wrongful confinement of person for whose liberation writ has been issued

By virtue of S. 345 whoever keeps any person in wrongful confinement, knowing that

a writ for the liberation of that person has been duly issued, shall be punished with

imprisonment of either description for a term which may extend to two years in addition to

any term of imprisonment to which he may be liable under any other section of this chapter.

Wrongful confinement in secret

By virtue of S. 346 whoever wrongfully confines any person in such manner as to

indicate and intention that the confinement of such person may not be known to any person

interested in the person so confined, or to any public servant, or that the place of such

confinement may not be known to or discovered by any such person or public servant as

hereinbefore mentioned, shall be punished with imprisonment of either description for a

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Section 342.

165

term which may extend to two years in addition to any other punishment to which he may

be liable for such wrongful confinement.

Wrongful confinement to extort property, or constrain to illegal act

S. 347 provides that whoever wrongfully confines any person interested in the

person confined, any property or valuable security or of constraining the person

confined or any person interested in such person to do anything illegal or to give any

information which may facilitate the commission of an offence, shall be punished

with imprisonment of either description for a term which may extend to three years,

and shall also be liable to fine.

348. Wrongful confinement to extort confession, or compel restoration of property

According to S. 348 whoever wrongfully confines any person for the purpose of

extorting from the person confined or any person interested in the person confined any

confession or any information which may led to the detection of an offence or misconduct,

or for the purpose of constraining the person confined or any person interested in the person

confined to restore or to cause the restoration of any property or valuable security or to

satisfy any claim or demand, or to give information which may lead to the restoration of

any property or valuable security, shall be punished with imprisonment of either description

for a term which may extend to three years, and shall also be liable to fine.

CRIMINAL FORCE AND ASSAULT

Definition of Force (S. 349)

A person is said to use force against another in the following circumstances :

(i) If he causes motion, change of motion or cessation of motion to that other, or

(ii) If he causes to any substance such motion, or change of motion, or cessation

of motion as brings that substance in to contact, or

(a) With any part of that other's body, or

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(b) With anything that other is wearing or carrying, or

feeling.

The above said act is to be done in one of the following ways:

(a) By his own bodily power.

(b) By disposing of any substance in such a manner that the motion or

chance or cessation of motion takes place without any further act on his part , or on

the part of any other person.

Criminal Force (S.350)

A person is said to have used 'Criminal Force' to another, if the following

conditions are satisfied:

(1) He should have intentionally used force to the other person.

(2) The force should be used without consent of that person.

The force should be used for committing any offence, or to cause injury, fear, or

annoyance to the person to whom the force is used.

Illustrations

(a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus

intentionally causes the boat to drift down the stream. Here A intentionally causes motion

to Z, and he does this by disposing substances in such a manner that the motion is produced

without any other act on any person’s part, A has therefore intentionally used force to Z;

and if he has done so without Z’s consent, in order to the committing of any offence, or

intending or knowing in to be likely that this use of force will cause injury, fear or

annoyance to Z, A has used criminal force to Z.

(b) Z is riding in a chariot. A lashes Z’s horses, and thereby causes them to quicken their

pace. Here Z has caused change of motion to Z by inducing the animals to change their

motion. A has therefore used force to Z; and if A has done this without Z’s consent,

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intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has

used criminal force to Z.

palanquin. Here A has caused therefore used force to Z; and as A has acted thus

intentionally, without Z’s consent, in order to the commission of an offence. A has used

criminal force to Z.

(d) A intentionally pushes against Z in the street. Here A has by his own bodily power

moved his own person so as to bring it into contact with Z. He has therefore intentionally

used force to Z; and if he has done so without Z’s consent, intending or knowing it to be

likely that he may thereby injure, frighten or annoy Z, he has used criminal force to Z.

(e) A throws a stone intending or knowing it to be likely that the stone will be thus

brought in to contact with Z, or with Z’s clothes, or with something carried by Z, or that it

will strike water and dash up the water against Z’s clothes or something carried by Z. Here,

if the throwing of the stone produces the effect of causing any substance to come into

contact with Z, or Z’s clothes. A has used force to Z; and if he did so without Z’s consent,

intending thereby to injure, frighten or annoy Z, he has criminal force by Z.

(f) A intentionally pulls up a woman’s veil. Here A intentionally uses force to her, and if

he does so without her consent intending or knowing it to be likely that he may thereby

injure, frighten or annoy her, he has used criminal force to her.

(g) Z is bathing, A pours into the bath water which he knows to be boiling. Here A

intentionally by his own bodily power causes such motion in the boiling water as brings

that water into contact with Z, or with that water so situated that such contact must affect

Z’s sense of feeling; A has therefore intentionally used force to Z; and he has done this

without Z’s consent intending or knowing it to be likely that he may thereby cause injury,

fear, or annoyance to Z, A has used criminal force.

(h) A incites a dog to spring upon Z, without Z; s consent. Here, if A intends to cause

injury, fear or annoyance to Z, he uses criminal force to Z.

Assault (S. 351)

A person is liable to punished for assault if the following conditions are satisfied:

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(1) He should have made any gesture or any preparation.

(2) The gesture or preparation should be made with intention to apprehend any person

that he is about to use criminal force to that person. Or

(3) He should have knowledge that the gesture or preparation is likely to cause

apprehension to any person that he is about to use criminal force to that person.

Explanation

Mere words do not amount to an assault. But the words which a person uses may give

to his gestures or preparation such a meaning as may make those gestures or preparations

amount to an assault.

Illustrations

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z

to believe that A is about to strike Z, A has committed an assault.

(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be

likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A

has committed an assault upon Z.

used by A could in no case amount to an assault, and though the mere gesture,

unaccompanied by any other circumstances, might not amount to an assault, the gesture

explained by the words may amount to an assault.

Punishment for Assault or Criminal Force Otherwise than on grave Provocation (S.352)

Whoever assaults or uses criminal force to any person otherwise than on grave and

sudden provocation given by that person, shall be punished with imprisonment of either

description for a term which may extend to three months, or with fine which may extend to

five hundred, or with both.

Explanation

Grave and sudden provocation will not mitigate the punishment for an offence under

this Section, if the provocation is sought or voluntarily provoked by the offender as an

excuse for the offence, or

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If the provocation is given by anything done in obedience to the law, or by a public

servant, in the lawful exercise of the powers of such public servant, or

If the provocation is given by anything done in the lawful exercise of the right of

private defence.

Whether the provocation was grave and sudden enough to mitigate the offence is a

question of fact.

Assault or Criminal Force to Deter Public Servant from Discharge of his Duty (S.353)

Whoever assaults or uses criminal force to any person being a public servant in the

execution of his duty as such public servant, or with intent to prevent or deter that person

from discharging his duty as such public servant, or in consequence of anything done or

attempted to be done by such person in the lawful discharge of his duty as such public

servant, shall be punished with imprisonment of either description for a term which may

extend to two years, or with fine, or with both.

Assault or Criminal Force to Woman with Intent to Outrage her Modesty (S. 354)

Whoever assaults or uses criminal force to any woman, intending to outrage or

knowing it to be likely that he will thereby outrage her modesty, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine,

or with both.

Assault or Criminal Force with Intent to Dishonour Person, Otherwise than on grave

Provocation (S. 355)

Whoever assaults or uses criminal force to any person, intending thereby to dishonour

that person, otherwise than on grave and sudden provocation given by that person, shall be

punished with imprisonment for a term which may extend to two years, or with fine, or

with both.

Assault or Criminal Force in Attempt to Commit Theft of Property Carried by a Person (S.

356)

Whoever assault or uses criminal force to any person, in attempting to commit theft

on any property which that person is then wearing or carrying, shall be punished with

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imprisonment of either description for a term which may extend to two years, with fine, or

with both.

Assault or Criminal Force in Attempt Wrongfully to Confine a Person (S, 357)

Whoever assaults or uses criminal force to any person, in attempting wrongfully to

confine that person, shall be punished with imprisonment of either description for a term

which may extend to one year, or with fine which may extend to one thousand rupees, or

with both.

Assault or Criminal Force on grave Provocation (S. 358)

Whoever assaults or uses criminal force to any person on grave and sudden

provocation given by that person, shall be punished with simple imprisonment for a term

which may extend to one month, or with fine which may extend to two hundred rupees, or

with both.

Explanation

The last Section is subject to the same Explanation as Section 352.

KIDNAPPING AND ABDUCTION

Kidnapping (S.359)

Kidnapping literally means child stealing. Kidnapping means carrying of a person by

illegal force. Kidnapping is of two kinds. They are

(1) Kidnapping from India

(2) Kidnapping from lawful guardian

(1) Kidnapping from India (S.360)

A person is liable to be punished for kidnapping from India, if the following conditions are

satisfied.

(a) He should have conveyed any person beyond the limits of India.

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(b) It should be done without the consent of that person or of some person legally

authorized to consent on behalf of that person.

(2) Kidnapping from Lawful Guardianship (S.361)

In this the following conditions are to be satisfied:

a) Taking or enticing away a minor or a person of unsound mind.

b) Such minor must be under 16 years of age if a male or 18 years of age is a female.

c) Such taking or enticing must be without the consent of such guardian.

In Thakoval v. State of Gujarat, a rich industrialist induced a girl of 14 years to leave

her home to have illicit intercourse with him in his garage. He is liable.

In Parkash v. State of Haryana

132

, it was held that on plain reading of this section the

consent of the minor who is taken or enticed is wholly material. It is only the guardians

consent which takes the out of its purview. Nor is it necessary that the taking or enticing

must be shown to have been by means of fraud or force. Persuasion by the accused which

creates the willingness to on the part of minor to be taken out of the keeping of the lawful

guardian would be sufficient to attract the section.

Punishment for Kidnapping (S. 363)

Whoever kidnaps any person from India or from lawful guardianship, shall be

punished with imprisonment of either description for a term which may extend to seven

years, and shall also be liable to fine.

Abduction (Section 362)

Definition

“If any person by force compels, or by any deceitful means induces another to go

from any place, he is said to abduct person”

Abduction by itself is not punishable. When abduction is to commit an offence like

murder, wrongful confinement etc is punishable.

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2004 (1) KLT SN 57

172

Essentials

1. Forceful compulsion or inducement by deceitful means.

2. The object of such compulsion or inducement must be the taking of a person from any

place. If no place or compulsion or deceits used by the accused on the person abducted,

then it is not an offence, so, in abduction force or deceit is used.

Illustration

1. A forcibly carries or entices B away from his home in order that B may be murdered.

A has committed the offence of abduction.

2. A forcibly carries B from his place, intending to sacrifice him to an idol. A has

committed the offence of abduction.

Aggravated forms of the Offence of Kidnapping or Abduction

1. Kidnapping or maiming a minor for purpose of begging. Punishment upto 10 years and

fine.

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2. Kidnapping or abducting in order to commit murder. Punishment- imprisonment for life

or rigorous imprisonment upto 10 years and fine.

134

3. Kidnapping for ranson. Punishable with death or imprisonment for life and fine.

135

4. Kidnapping or abducting with intent secretly and wrongfully to confine a person.

Punishment- imprisonment upto 7 years and fine.

136

5. Kidnapping or abducting a woman to compel her to marry any person or to force or to

reduce her to illicit intercourse. Punishment- imprisonment upto 10 years and fine.

137

6. Inducing a minor girl under the age of 18 years to go from any place or to do any act

with the intention or knowledge that she will be forced or seduced to illicit inter-course.

Punishment- imprisonment upto 10 years and fine.

138

133

Section 363A.

134

Section 364.

135

Section 364A.

136

Section 365.

137

Section 366.

173

7. Importing a girl under 21 years of age from a foreign country or from the State of Jammu

and Kashmir with intention or knowledge that she will be forced or seduced to illicit

intercourse. Punishment-imprisonment upto 10 years and fine.

139

8. Kidnapping or abducting in order to subject a person to grievous hurt, slavery or

unnatural lust. Punishment- imprisonment upto 10 years and fine.

140

Kidnapping or abducting child under ten years with intent to steal from its

person

By virtue of S. 369 whoever kidnaps or abducts any child under the age

of ten years with the intention of taking dishonestly any movable property from the

person of such child, shall be punished with imprisonment of either description for a

term which may extend to seven years, and shall also be liable to fine.

Buying or disposing of any person as slave

According to S. 370 whoever imports, export, removes, buys, sells or disposes of any

person as a slave, or accepts, receives or detains against his will any person as slave, shall

be punished with imprisonment of either description for a term which may extend to seven

years and shall also be liable to fine.

Habitual dealing in slave

S. 371 states that whoever habitually imports, exports, removes, buys, sells,

traffics or deals, shall be punished with [imprisonment for life]

141

’ or with

imprisonment of either description for a term not exceeding the years, and shall also

be liable to fine.

138

Section 366-A.

139

Section 366-B.

140

Section 367.

141

Subs. by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956).

174

Selling minor for purposes of prostitution, etc

S. 372 provides that hoever sells, lets to hire, or otherwise disposes of any

[person under the age of eighteen years with intent that such person shall at any age

be employed or used for the purpose of prostitution or illicit intercourse with any

person or for any unlawful and immoral purpose, or knowing it to be likely that such

person will at any age be]

142

employed or used for any such purpose, shall be

punished with imprisonment of either description for a term which may extend to ten

years, and shall be liable to fine.

[Explanation I to S. 372 states that when a female under the age of eighteen years

sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps

or manages a brothel, the so disposing of such female shall, until the contrary is

proved, be presumed to have disposed of her with the intent that she shall be used for

the purpose of prostitution.

Explanation II to S. 372 states that for the purposes of this section “illicit intercourse”

means sexual intercourse between persons not united by marriage or by any union or tie

which, though not amounting to a marriage, is recognised by the personal law or custom of

the community to which they belong or, where they belong to different communities, of

both such communities, as constituting between them a quasi –marital relation].

143

Buying minor for purposes of prostitution, etc

S. 373 provides that whoever buys, hires or otherwise obtains possession of any

[person under the age of eighteen years with intent that such person shall at any age

142

Subs. by Act 18 of 1924, sec. 2, for certain words.

143

Ins. by Act 18 of 1924, sec. 3.

175

be employed or used for the purpose of prostitution or illicit intercourse with any

person or for any unlawful and immoral purpose, of knowing it to be likely that such

person will at any age be]

144

employed or used for any purpose, shall be punished

with imprisonment of either description for a term which may extend to ten years,

and shall also be liable to fine.

Explanation I to S. 372 states that any prostitute or any person keeping or managing

a brothel, who buys or otherwise obtains possession of a female under the age of

eighteen years shall, until the contrary is proved, be presumed to have obtained

possession of such female with the intent that she shall be used for the purpose of

prostitution.

Explanation I to S. 372 states that “Illicit intercourse” has the same meaning as in

section 372].

145

Unlawful compulsory labour

By virtue of S. 374 whoever unlawfully compels any person to labour against the will

of that person, shall be punished with imprisonment of either description for a term which

may extend to one year, or with both.

Distinction Between Kidnapping and Abduction

Kidnapping Abduction

1. It is not a continuing offence. It is a continuing offence.

144

Subs. by Act 18 of 1924, sec, 2 for certain words.

145

Ins. by Act 18 of 1924, sec, 4.

176

It is an offence by itself. It is not an offence by itself. It is

committed only to commit

some other offence.

2. It is of 2 types namely It is only of one type.

i) Kidnapping from India

ii) Kidnapping from lawful

guardianship.

3. Committed only in respect It can be committed in respect of any

of a minor or a person of person.

unsound mind in the case of

kidnapping from lawful guard-

ianship.

4.Person kidnapped is removed Removal from guardianship is unnecessary.

out of the lawful guardianship. Abduction has reference only to the person

abducted.

5.Means used for kidnapping may Force, compulsion or deceifful means are

be innocent. The person is taken used.

away or enticed to go away with

the kidnaper.

6.Consent is immaterial If consent is there then it is not an offence.

7.Intention is irrelevant. Intention is an important factor.

RAPE AND CUSTODIAL RAPE

Rape

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Sections 375 and 376 deal with the offence of rape and punishment rape. Section 375

defines the offence for rape. A man is liable to be punished for rape, if the following

conditions are satisfied.

1. He should have sexual intercourse with a woman.

2. The sexual intercourse should be under any of the following six circumstances.

i) Against the will of the woman.

ii) Without her consent.

iii) With her consent, when her consent has been obtained by putting her or any person

in whom she is interested in fear of death, or of hurt.

iv) With her consent, when the man knows that he is not her husband and that her

consent is given because she believes that he is lawfully married to him.

v) With her consent, when she is under 16 years of age.

In order to constitute the offence of rape penetration is sufficient. Sexual intercourse

by a man with his own wife is rape if the wife is under the age of 15 years.

In Young v R, the accused had the sexual intercourse with a woman when she was

asleep. It was held that the accused committed rape against her will.

In Tukaram v. State of Maharashtra

146

, a harijan girl aged 18 years was raped by one

of constable. Another constable Tukaram tried to rape her, but he failed to rape her as he

was too drunk. The two accused were found not guilty by the trial judge. The Bombay High

Court reversed the finding and held that accused was guilty. The Supreme Court acquitted

both the appellants.

In Nandakishore Rath v. Nanda

147

, testimony of parents and positive medical report

were considered sufficient corroboration in the case of the rape of a girl of 8 years.

In State of H.P v. Shree Kant Shekari

148

, it was held that it is not for the victim to

show that there was no consent. It is for the accused to place the material to show that there

was consent.

146

AIR 1979

147

1991 Cr LJ 835.

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2004 (3) KLT SN 122

178

In Aliyar v. State of Kerala

149

, it was held that merely because there had been earlier

intercourses that will not give a license to the accused to have any forceful intercourse.

Punishment for Rape

150

By virtue of S. 376 (1) whoever, except in the cases provided for by sub-Section (2),

commits rape shall be punished with imprisonment of either description for a term which

shall not be less than seven years but which may be for life or for a term which may extend

to ten years and shall also be liable to fine unless the woman raped is his own wife and is

not under twelve years of age, in which cases, he shall be punished with imprisonment of

either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the

judgment, impose a sentence of imprisonment for a term of less than seven years.

Whoever: -

(a) Being a police officer commits rape—

(i) Within the limits of the police station to which he is appointed; or

(ii) In the premises of any station house whether or not situated in the police station to

which he is appointed; or

(iii) On a woman is his custody or in the custody of a police officer subordinate to him; or

(b) Being a public servant, takes advantage of his official position and commits rape on a

woman is custody as such public servant or in the custody of a public servant subordinate

to him; or

custody established by or under any law for the time being in force or of a woman’s or

children’s institution takes advantage of his official position and commits rape on any

inmate of such jail, remand home, place or institution; or

(d) Being on the management or on the staff of a hospital, takes advantage of his official

position and commits rape on a woman in that hospital; or

(e) Commits rape on a woman knowing her to be pregnant; or

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2004 (1) KLT SN 93

150

Section 376.

179

(f) Commits rape when she is under twelve years of age; or

(g) Commits gang rape,

Explanation 1 S.376 (1) provides that where a woman is raped by one or more in a

group of persons acting in furtherance of their common intention, each of the persons shall

be deemed to have committed gang rape within the meaning of this sub-Section.

Explanation 2 S.376 (2) provides that women’s or children’s institution “means an

institution, whether called an orphanage of a home for neglected women or children or a

widows” home or by any other name, which is established and maintained for the reception

and care of women or children.

Explanation 3 to S.376 (3) provides that “Hospital” means the precincts of the

hospital and includes the precincts of any institution for the reception and treatment of

persons during convalescence or of persons requiring medical attention or rehabilitation.

Intercourse by a Man with his Wife during Separation

By virtue of S.376A whoever has sexual intercourse with his wife, who is living

separately from him under a decree of separation or under any custom or usage without her

consent shall be punished with imprisonment of either description for a term which may

extend to two years and shall also be liable to fine.

Intercourse by Public Servant with Woman in his Custody

By virtue of S. 376B whoever, being a public servant, takes advantage of his official

position and induces or seduces any woman, who is in his custody as such public servant or

in the custody of a public servant subordinate to him, to have sexual intercourse with him,

such sexual intercourse not amounting to the offence of rape, shall be punished with

imprisonment of either description for a term which may extend to five years and shall also

b e liable to fine.

Intercourse by Superintendent of Jail, Remand Home, etc

By virtue of S. 376C whoever, being the superintendent or manager of a jail, remand

home or other place of custody established by or under any law for the time being in force

or of a woman ‘s or children’s institution takes advantage of his official position and

induces or seduces any female inmate of such jail, remand home, place or institution to

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have sexual intercourse with him, such sexual intercourse not amounting to the offence of

rape, shall be punished with imprisonment of either description for a term which may

extend to five years and shall also be liable to fine.

Explanation 1 for S.376C states that “Superintendent” in relation to jail, remand home

or other place of custody or a women’s or children’s institution included a person holding

any other office in such jail, remand home, place or institution by virtue of which he can

exercise any authority or control over its inmates.

Intercourse by any Member of the Management or Staff of a Hospital with any Woman in

that Hospital

By virtue of S. 376D whoever, being on the management of a hospital or being on the

staff of a hospital takes advantage of his position and has sexual intercourse with any

woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall

be punished with imprisonment of either description for term which may extend to five

years and shall also be liable to fine.

In England

Now the punishment in English law for this crime is imprisonment for life.

By virtue of S.376 (2) of the Code prescribes punishment for custodial rape, rape of

pregnant woman and girl under 12 years of age. The offence of custodial rape is punishable

with vigorous imprisonment for a term which shall not be less than 10 years. It may extend

to fine. The accused shall be liable to fine.

There is no specific provision in the Code providing punishment for attempt to

commit rape. Section 511 of the Code prescribes punishment for attempt to commit

offences punishable with imprisonment for life or imprisonment for a specific period.

In the case of rape if there is no penetration, the accused cannot be convicted for rape.

He may be convicted for attempt to rape under S.376 read with S 511 of the Code.

In Madanlal v. State of Jammu and Kashmir, the court held that the accused is liable

to be punished for attempt to commit rape under S 376/511 IPC.

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Unnatural Offences

According to S.377 whoever voluntarily has carnal intercourse against the order of

nature with any man, woman or animal, shall be punished with imprisonment for life, or

with imprisonment of either description for term which may extend to ten years, and shall

also be liable to fine.

Explanation to S. 377 states that penetration is sufficient to constitute the carnal

intercourse necessary to the offence described in this Section.

TOPIC 6

OFFENCES AGAINST PROPERTY

THEFT(S.378)

Definition

“Whoever intending to take dishonestly any movable property out of the possession of

any person without that person’s consent, moves that property in order to such taking is

said to commit theft”.

151

The punishment for theft is 3 years or fine or both.

152

Essentials

i) The property must be taken by the offender without the consent of the owner.

ii) There must be dishonest intention to take the property.

iii) Such property must be movable.

iv) Such property must be taken out of the possession of a person. Such person need not

be a lawful owner.

v) There must be movement or removal of the property for the purpose of taking.

vi) There must be no violence.

151

Section 378.

152

Section 379.

182

1. Without the Consent of the Owner or Possessor

The taking of the movable property must be without the consent of the person in

possession. If there is implied or express consent, then there can be no theft. For eg.,

delivery of property to the creditor for the time barred debt by mistake is not theft.

Illustration

A being on friendly terms with Z goes into Z’s library in Z’s absence and takes away

a book without express consent for the purpose merely of reading it, and with the intention

of returning it. Here it is probable that A may have assumed that he had implied consent to

use Z’s book. If this was A’s impression, A has not committed theft.

2. This is the most important element for the offence of theft. Dishonest intention means

the intention to cause wrongful gain to one person and wrongful loss to another. The

intention to take dishonestly must exist at the time of taking to property.

Illustration

A sees a ring belonging to Z lying on a table in Z’s house. A hides the ring in place

not easily found out by Z. A does this act with the intention to sell it later. Here A is

punishable for theft, because A has dishonestly intention at the time of taking the ring.

If the owner is kept out of possession temporarily then it is not theft, because there is

no intention to cause wrongful loss to the owner.

Rameshwer Singh’s case

A person took another man’s cycle thinking that it was his own which was missing

and later brought it back. As he did not have any criminal intention to obtain wrongful gain

to himself he is not guilty of theft.

3. Movable Property

Theft can be committed only to movable properties. Movable property includes all

properties except those which are attached to the earth permanently. If the immovable

property is severed from the ground, it becomes movable, and theft can be committed to

such severed property.

183

For eg, A cut down a tree on Z’s land with the intention of dishonestly taking the tree

of Z’s possession without Z’s consent. Here as soon as A severed the tree in order to such

taking he has committed theft.

Animals are classified as movables and can be the subject matter of theft. But if cattle

trespass on another’s land and damage the property therein, then the owner’s seizure of

cattle is not theft. A house cannot be subject to theft but there can be theft of house

materials. Fishing in running waters are not subject to theft. Abandoned animals and things

cannot be subject to theft. Water in a pipe can be theft. Similarly the removal of animals

grazing in the open field is theft.

4. Owner Liable for Theft of his own Property

This arises when the owner’s property is in possession of another person. For e.g. (i)

A owns money to Z for repairing his watch. Z retains the watch lawfully as a security for

the debt. A takes the watch out of Z’s possession. Now A commits theft because he

deprives Z of the possession of the security.

ii) A having pledged his watch to Z takes it out of Z’s body possession without the Z’s

consent, not having paid what he had borrowed on the watch. Here a commits theft though

the watch is his own property because he takes it away dishonestly.

5. Out of Possession

The property stolen must be in some one’s possession. Such property must have been

taken out of such possession. Ownership of the property is not necessary for e.g. if X steals

the goods of A and Z steals from X both X and Z have committed theft.

In India, husband and wife have separate legal right to own or possess the property.

Thus if a wife removes her husband’s property with dishonest intention, she is guilty of

theft. In the same way the husband is liable fort heft of his wife’s property. In joint

ownership, if one owner dishonestly takes exclusive possession, then it amounts to theft.

6. Movement of Removal of Property

In order to constitute the offence of theft, there must be some movement of the

property for the purpose of taking it. If there is no movement, there can be no theft. For eg

a purse stitched with the shirt cannot be thieved because there can be no movement. A

184

person is said to cause a thing to move by removing an obstacle which prevented it from

moving, or by actually moving it.

Illustration

A puts bait for dogs in his pocket and thus induced Z’s dog to follow it. Here if A’s

intention is dishonestly to take the dog out of Z’s possession without Z’s consent then A

has committed theft as soon as Z’s dog has begun to follow A.

Aggravated Form of Theft

1. Theft of property from any building, tent and vessel used for human dwelling.

Punishment upto 7 years and fine.

153

2. Theft of master’s property by clerk or servant. Punishment upto 7 years and fine.

154

3.Committing theft after making preparations for causing death, hurt or restraint in order to

such committing of theft. Punishment upto 10 years and fine.

155

Illustrations

a) A commits theft of property in Z’s possession and while committing this theft, he had

a loaded pistol under his garment having provided this pistol for the purpose of hurting Z in

case Z should resist. This is an aggravated form of theft

b) B Picks Z’s pocket, posted several of his companions near him in order that they

may restrain B, if B should resist. This is an aggravated form of theft.

In State of Rajasthan v. Pooram Singh

156

, fish in an enclosed Government tank is the

property in possession of Government and it is theft to catch fish without a license apart

from being an offence under the Fisheries Act.

In Bhagu v. Vishnu

157

, Court held that carrying away of trees after falling is theft.

TOPIC 30

EXTORTION

153

Section 380.

154

Section 381.

155

Section 382.

156

1977

157

1897.

185

(Ss. 383-389)

Definition

If a person intentionally puts another in fear of injury and dishonestly induces that

person to deliver any valuable security to him or to other person, he commits the offence of

extortion.

158

The offender is punished with imprisonment for 3 years or fine or both.

159

Essentials

1. Intentionally putting any person in fear of any injury to that person or any other person;

2. Thereby dishonestly inducing the person (so put in fear)

3. To deliver to any person any property or valuable property;

4. There should be no violence but threat for violence;

5. Valuable securities or properties convertible into valuable securities must be taken with

the owner’s consent.

Illustrations

i) A threats Z to punish a defamatory libel concerning Z unless Z gives him

money. He induces Z to give him money. A has committed extortion.

ii) A threatens Z that he will keep Z’s child in wrongful confinement unless

Z will sign and deliver to A, a promissory note binding Z to pay certain amount to A. Z

signs and delivers the note. A has committed extortion.

iii) A by putting Z in fear of grievous hurt, dishonestly induces Z to sign on a blank paper

and deliver it to A. Z signs and delivers the paper to A. Here as the paper so signed may be

converted into a valuable security A has committed extortion.

Thus the offence of extortion is committed by overpowering the will of the other

person. The property obtained by extortion may be both movable and immovable.

Aggravated Forms of Extortion

1. Putting person in fear of injury in order to commit extortion. Punishment upto 2 years or

with fine or both.

160

158

Section 383.

159

Section 384.

186

2. Extortion by putting a person in fear of death or grievous hurt. Punishment up to 10 years

and fine.

161

3. Putting person in fear of death or of grievous hurt in order to commit extortion.

Punishment upto 7 years and fine.

162

4. Extortion by threat of accusation of an offence punishable with death or imprisonment

for life. Punishment upto 10 years and fine.

163

5. Putting a person in fear of accusation if offence in order to commit extortion. Punishment

upto 10 years and fine.

164

In Meer Abbas Ali v. Omed Ali, the accused demanded money from a person. He

threatened that in case of refusal the victim would lose is appointment. The court held that

it amounts to extortion.

In Chander Kala v. Ram Kishan

165

, where the head master of a school called a lady

teacher to a place where he was alone and induced her to sign three blank papers by

threatening an attack on her modesty, the SC held that it amounted to an offence under this

Section.

Theft and Extortion

1. Extortion is committed by the wrongful obtaining of consent. In theft the offender

takes without the owner's consent.

2. The property obtained by extortion is not limited as in theft to immovable property

only. Immovable property may be the subject of extortion.

3. In extortion the property is obtained by intentionally putting as person in fear or

injury to that person or to any other, and there by dishonestly inducing him to part with his

property. In theft the element of force does not arise.

ROBBERY

(S 390)

160

Section 385.

161

Section 386.

162

Section 387.

163

Section 388.

164

Section 389.

165

1985.

187

In all robbery there is either theft or extortion.

When Theft is Robbery

The theft will become robbery if the following conditions are satisfied:

(1)The offender should have voluntarily

(a) caused or attempted to cause death, or

(b) caused instant fear of death, or

(d) caused instant fear of hurt, or

(e) caused or attempted to cause wrongful restraint, or

(f) caused instant fear of wrongful restraint of any person .

(2) The above stated acts of violence should have been done for the following four ends .

(a) In order to commit theft, or

(b) In committing theft, or

(d) In attempting to carry away stolen property.

When Extortion is Robbery

Extortion will become robbery if the following conditions are satisfied:

(1) At the time of committing the extortion the offender should be in the presence of the

person put in fear.

(2) The offender should have committed extortion by putting that person in fear of instant

death, or of instant hurt, or instant wrongful restraint to that person or to some other person.

(3) The person so put in fear should have delivered the thing extorted then and there.

The offender is said to be present if he is sufficiently near to put the other person in

fear of instant death, of instant hurt, or of instant wrongful restraint.

Illustrations

188

(a) A hold Z down and fraudulently takes Z’s money and jewels from Z’s clothes without

Z’s consent. Here A has committed theft, and in order to the committing of that theft, has

voluntarily caused wrongful restraint to Z. A has therefore committed robbery.

(b) A meets Z on the high roads, shows a pistol, and demands Z’s purse. Z in

consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in

fear of instant hurt, and being at the time of committing the extortion in his presence. A has

therefore committed robbery.

down a precipice, unless Z delivers his purse. Z, in consequence delivers his purse. Here A

as extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is

there present. A has therefore committed robbery on Z.

(d) A obtains property from Z by saying—“Your child is in the hands of my gang, and will

be put to death unless you send us ten thousand rupees”. This is extortion, and punishable

as such; but it is not robbery, unless Z is put in fear of the instant death of this child.

Punishment for Robbery

166

Rigorous imprisonment for a term which may extend to ten years, and shall also be

liable to fine; and, if the robbery be committed on the highway between sunset and sunrise,

the imprisonment may be extended to fourteen years.

Attempt to Commit Robbery

167

Whoever attempts to commit robbery shall be punished with rigorous imprisonment

for a term which may extend to seven years, and shall also be liable to fine.

Voluntarily Causing Hurt in Committing Robbery

168

If any person, in committing or in attempting to commit robbery, voluntarily causes

hurt, such person, and any other person jointly concerned in committing or attempting to

commit such robbery, shall be punished with imprisonment for life, or with rigorous

imprisonment for a term which may extend to ten years, and shall also be liable to fine.

166

Section 392.

167

Section 393.

168

Section 394.

189

In Abdul Rashid v Naushar Ali

169

, the Calcutta High Court clearly laid down the

nature of robbery under Section 390 of IPC.

In Hushurt Sheikh's

170

, case where A and B were stealing mangoes from a tree. C

surprised them on which A knocked him with a stick. This amounts to Robbery.

In State v. Suku

171

, a person who has been convicted of robbery under this Section

need not be convicted fort heft.

DACOITY (S 391)

When five or more persons conjointly commit attempt to commit a robbery, or where

the whole number of persons conjointly committing or attempting to commit a robbery, and

persons present and aiding such commission or attempt to five or more, every person so

committing, attempting or aiding, is said to commit “dacoity”

Thus the following cases will amount to dacoity:

(1) Five or more persons attempting to commit robbery.

(2) Five or more persons actually committing robbery.

(3) One committing robbery and others present and aid in commission.

(4) One attempting robbery and others present and aid to attempt.

In State of Maharashtra v. Joseph Mingel Koli

172

, when robbery is either committed

or an attempt to commit it is made by five or more persons then all such persons, who are

present or aiding in its commission or in an attempt to commit it, would commit the offence

of dacoity.

Punishment for Dacoity

173

169

1979.

170

1886 (6) WR (cr) 85.

171

1989 Cr LJ 2401.

172

(1997) 2 Crimes 228 (Bom).

173

Section 395.

190

Imprisonment for life or with rigorous imprisonment for a term which may extend to

ten years, and shall also be liable to fine.

Dacoity with Murder

174

If any one of five or more persons, who are conjointly committing dacoity, commits

murder in so committing dacoity, every one of those persons shall be punished with death,

or imprisonment for life, or rigorous imprisonment for term which may extend to ten years,

and shall also be liable to fine.

Robbery, or Dacoity, with Attempt to Cause Death or Grievous Hurt

175

If, at the time of committing robbery or dacoity, the offender uses any deadly

weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt

to any person, the imprisonment with which such offender shall be punished shall not be

less than seven years.

Attempt to Commit Robbery or Dacoity when Armed with Deadly Weapon

176

If, at the time of attempting to commit robbery or dacoity, the armed with any deadly

weapon, the imprisonment with which such offender shall be punished shall not be less

than seven years.

Making Preparation to Commit Dacoity

177

Whoever makes, any preparation for committing dacoity, shall be punished with

rigorous imprisonment for a term which may extend to ten years, and shall also be liable to

fine.

Punishment for Belonging to Gang of Dacoits

178

Imprisonment for life or with rigorous imprisonment for a term which may extend to

ten years, and shall also be liable to fine.

Punishment for Belonging to Gang of Habitual Thieves

179

174

Section 396.

175

Section 397.

176

Section 398.

177

Section 399.

178

Section 400.

179

Section 401.

191

Rigorous imprisonment for a term which may extend to seven years, and shall also be

liable to fine.

Assembling For Purpose of Committing Dacoity

180

Whoever, at any time after the passing of this Act, shall be one of five or more

persons assembled for the purpose of committing dacoity shall be punished with rigorous

imprisonment for a term which may extend to seven years, and shall also be liable to fine.

In Lachman Ram v. State of Orissa

181

, articles were recovered shortly after the dacoity

at the instance of the accused persons. The SC held that it was sufficient for conviction

under S. 396 as well as under S. 412.

In Bahar Bechar v. State of Gurajat

182

, 53 persons were tried for belonging to a gang

of persons who associated for the purpose of habitually committing offences like theft,

robbery and dacoity. In the Session Court 12 accused were convicted and others were

acquitted. In the appeal it was contended that as none of the appellants were prosecuted for

any theft or robbery and as no express or implied agreement to habitually committing theft

could not be proved by the prosecution, the conviction was not in accordance with law. But

the court held that to prove a case under s. 401 the prosecution has only to prove that the

accused persons belongs to a gang and that such a gang is associated for the purpose of

habitually committing the offence of theft or robbery.

DISHONEST MISAPPROPRIATION OF PROPERTY (S. 403)

Whoever dishonestly misappropriates or converts to his own use any movable

property, shall be punished with imprisonment of either description for a term which may

extend to two years, or with fine, or with both.

Illustrations

(a) A takes property belonging to Z out of Z does possession, in good faith, believe, at any

time when he takes it, that the property belongs to him. A is not guilty of theft; but if A,

after discovering his mistake, dishonestly appropriates the property to his own use, he is

guilty of an offence under this Section.

180

Section 402.

181

AIR 1985 SC 486

182

1960 Guj.L.R.34

192

(b) A being on friendly term with Z, goes into Z’s library in Z’s absence, and takes away a

book without Z’s express consent. Here, if A was under the impression that he had Z’s

implied consent to take the book for the purpose of reading it, A has not committed theft.

But, if A afterwards sells the book for his own benefit, he is guilty of an offence under this

Section.

intending to use it. Here, as A has a right to use the horse, he dose not dishonestly

misappropriate it. But, if A sells the horse and appropriates the whole proceeds to his own

use, he is guilty of any offence under this Section.

Explanation 1 for S.403 provides that a dishonest misappropriation for a time only

is a misappropriation with the meaning of this Section.

Illustration

A finds a Government promissory note belonging to Z, bearing a blank endorsement.

A knowing that the note belongs to Z pledges it with a banker as a security for a loan,

intending at a future time to restore it to Z. A has committed an offence under this Section.

Explanation 2 for S. 403 provides that a person who finds property not in the

possession of any other person, and takes such property for the purpose of protecting if for,

or of restoring it to, the owner does not take or misappropriate it dishonestly, and is not

guilty of an offence; but he is guilty of the offence above defined, if the appropriates it to

his own use, when the knows or has the means of discovering the owner, or before he has

used reasonable means to discover and give notice to the owner and has kept the property a

reasonable time to enable the owner to claim it. What are reasonable means or what is a

reasonable time in such a case, is a question of fact.

It is not necessary that the finder should know who is the owner of the property, or

that any particular person is the owner of it; it is at the time of appropriating it, he does not

believe it to be his own property, or in good faith believe that the real owner cannot found.

Illustrations

(a) A find a rupee on the high road, not knowing to whom the rupee belongs, A picks up

the rupee. Here A has not committed the offence defined in this Section.

193

(b) A finds a letter on the road, containing a bank note. From the direction and contents of

the letter he learns to whom the note belongs. He appropriates the note. He is guilty of an

offence under this Section.

has lost the cheque. But the name of the person, who has drawn the cheque, appears. A

knows that this person can direct him to the person in whose favour the cheque was drawn.

A appropriates the cheque without attempting to discover the owner. He is guilty of an

offence under this Section.

(d) A see Z drop his purse with money in it. A picks up the purse with the intention of

restoring it to Z, but afterwards appropriates it to his own use. A has committed an offence

under this Section.

(e) A finds a purse with money, not knowing to whom it belongs; he afterwards discovers

that it belongs to Z, and appropriates it to his own use. A is guilty of an offence under this

Section.

(f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately

without attempting to discover the owner. A is guilty of an offence under this Section.

Dishonest Misappropriation of Property Possessed by Deceased Person at the Time of his

Death

183

Whoever dishonestly misappropriates or converts to his own use property, knowing

that such property was in the possession of a deceased person at the time of that person’s

decease, and has not since been in the possession of any person legally entitled to such

possession, shall be punished with imprisonment of either description for a term which may

extend to three years, and shall also be liable to fine; and if the offender at the time of such

person’s decease was employed by him as a clerk or servant, the imprisonment may extend

to seven years.

Illustration

183

Section 404.

194

Z dies in possession of furniture and money. His servant A, before the money comes

into the possession of any person entitled to such possession dishonestly misappropriates it.

A has committed the offence defined in this Section.

In Gadgayya v. Guru Siddesvar

184

, the court held that the property of an idol or a

temple must be used for the purposes of that idol or temple; any other use would be a

malversation of that property, and, if dishonest, would amount to criminal

misappropriation.

In Bhagriam Dome v. Abar Dome

185

, the court held that criminal misappropriation

takes place when the possession has been innocently come by, but where, by a subsequent

change of intention, or from the knowledge of some new fact with which the party was not

previously acquainted, the retaining becomes wrongful and fraudulent.

Distinction Between the Theft and Criminal Misappropriation.

1. In theft the initial taking is always wrongful. In criminal misappropriation it may be

innocent and lawful. It is the subsequent change of intention that converts the lawful taking

into unlawful act of criminal misappropriation.

2. In theft there is invasion of possession of another person by the wrong doer. In criminal

misappropriation there is no such infringement of the right of possession. The offender is

already in possession of the property and it is his unlawful misappropriation of it that

creates the offence.

3. In theft mere moving of the property itself is an offence. In criminal misappropriation

mere moving of the property may not be an offence.

4. In theft the property is moved without the consent of the owner. In criminal

misappropriation the person might have come into possession of the property with the

consent of the owner.

5. Dishonest intention is common to both. In theft this is shown by moving of the property.

In criminal misappropriation it is effected by actual misappropriation.

184

1897 Unrep Cr C 919

185

1988 15 Cal 388 and 400.

195

6. In theft dishonest intention precedes taking of the property. It follows the taking of

property in criminal misappropriation.

CRIMINAL BREACH OF TRUST (S 405)

Section 405 of the Code defines criminal breach of trust. A person is liable to be

punished for criminal breach of trust if the following conditions are satisfied:

(1) He should have been entrusted with property or with any dominion over property.

(2) He should have dishonestly misappropriated or convert the property so entrusted to his

own use; or

(3) He should have used or disposed of that property in violation of any direction of law

prescribing the mode in which trust was to be discharged or of any legal contract touching

the discharge of such trust.

Explanation 1 for S. 402 provides that a person, being an employer of an

establishment whether exempted under Section 17 of the Employees’ Provident funds and

Miscellaneous Provisions Act, 1952 or not who deducts the employee’s contribution from

the wages payable to the employee for credit to a Provident Fund or Family Pension Fund

established by any law for the time being in force, shall be deemed to have been entrusted

with the amount of the contribution so deducted by him and if he makes default in the

payment of such contribution to said Fund in violation of the said law, shall be deemed to

have dishonestly used the amount of the said contribution in violation of a direction of law

as aforesaid.

Explanation 2 for S. 402 provides that a person, being an employer, who deducts the

employees’ contribution from the wages payable to the employee for credit to the

Employees’ State Insurance Fund held and administered by the Employees’ State Insurance

Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall

be deemed to have been entrusted with the amount of the contribution so deducted by him

and if he makes default in the payment of such contribution to the said Fund in violation of

the said Act, shall be deemed to have dishonestly used the amount of the said contribution

in violation of a direction of law as aforesaid.

196

Illustrations

(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which

directs him to divide the effects according to the will, and appropriate them to his own use.

A has committed criminal breach of trust.

(b) A is a warehouse-keeper. Z gong on a Journey, entrusts his furniture to A, under a

contract that it shall be returned on payment of a stipulated sum for warehouse room. A

dishonestly sells the goods. A has committed criminal breach of trust.

contract between A and Z, that all sums remitted by Z to A shall be invested by A,

according to Z’s direction. Z remits a lakh of rupees to A, with directions to A to invest the

same in Company’s paper. A dishonestly disobeys the direction and employs the money in

his own business. A has committed criminal breach of trust.

(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will

be more for Z’s advantage to hold shares in the Bank of Bengal, disobeys Z’s directions,

and buys shares in the Bank of Bengal, for Z, instead of buying Company’s paper, here,

though Z should suffer loss, and should be entitled to bring a civil action against A, on

account of that loss, yet A, not having acted dishonestly, has not committed criminal breach

of trust.

(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or

bound by a contract, express or implied, with the Government, to pay into a certain treasury

all the public money which he holds. A dishonestly appropriates the money. A has

committed criminal breach of trust.

(f) A, a carrier, is entrusted by Z with Property to be carried by land or by water. A

dishonestly misappropriates the property. A has committed criminal breach of trust.

Punishment for Criminal Breach of Trust (S. 406)

Imprisonment of either description for a term which may extend to three years, or

with fine, or with both.

Criminal Breach of Trust by Carrier, Etc (S. 407)

197

Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper,

commits criminal breach of trust in respect of such property, shall be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine.

Criminal Breach of Trust by Clerk or Servant (S. 408)

Whoever, being a clerk or servant or employed as a clerk or servant, and being in any

manner entrusted in such capacity with property, or with any dominion over property,

commits criminal breach of trust in respect of that property, shall be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine.

Criminal Breach of Trust by Public Servant, Or By Banker, Merchant or Agent (S. 409)

Whoever, being in any manner entrusted with property, or with any dominion over

property in his capacity of a public servant or in the way of his business as a banker,

merchant, factor, broker, attorney or agent, commits breach of trust in respect of that

property, shall be punished with imprisonment for life, or with imprisonment of either

description for a term which may extend to ten years, and shall also be liable to fine.

In Narindra Kumar Jain v. State of Madhya Pradesh

186

, it was held that the charge

against the appellant was that while he was posted as manager of Kisan Rice Mills,

Samgarth he was having custody and management of huge stocks of paddy entrusted to

him. A shortage of 1500 quintals was found and he was prosecuted. The plea of the

accused was that shortage was due to the paddy getting dried. He was liable.

In Gobardhan Chandra Mandal v. Kanai Lal Mandal

187

, the court held that this

Section applied only in legal contract and not one for a criminal purpose.

Stolen Property (S. 410)

Property, the possession whereof has been transferred by theft, or by extortion, or by

robbery, and property which has been criminally misappropriated or in respect of which

criminal breach of trust has been committed, is designed as “stolen property”, whether the

transfer has been made, or the misappropriation or breach of trust has been committed,

186

AIR 1996 S.C. 2213.

187

1953 (2) Cal. 133

198

within or without India. But, if such property subsequently comes into the possession of a

person legally entitled to the possession thereof, it then ceases to be stolen property.

Dishonestly Receiving Stolen Property (S. 411)

Whoever dishonestly receives or retains any stolen property, knowing or having

reason to believe the same to be stolen property, shall be punished with imprisonment of

either description for a term which may extend to three years, or with fine, or with both.

Dishonestly Receiving Property Stolen in the Commission of a Dacoity (S. 412)

Whoever dishonestly receives or retains any stolen property, the possession whereof

he knows or has reason to believe to have been transferred by the commission of dacoity, or

dishonestly receives from a person, whom he knows or has reason to believe to belong or to

have belonged to a gang of dacoity, property which he knows or has reason to believe to

have been stolen, shall be punished with imprisonment for life, or with rigorous

imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Habitually Dealing in Stolen Property (S. 413)

Whoever habitually receives or deals in property which he knows or has reason to

believe to be stolen property, shall be punished with imprisonment for life, or with

imprisonment of either description for a term which may extend to ten years, and shall also

be liable to fine.

Assisting in Concealment of Stolen Property (S. 414)

Whoever voluntarily assists in concealing or disposing of or making away with

property which he knows or has reason to believe to be stolen property, shall be punished

with imprisonment of either description for a term which may extend to three years, or with

fine, or with both.

In Kishan Lal v. State

188

, the accused was charged of the offence of receiving stolen

property. But the court acquitted him from the facts of the case appeared that he was a

bonafide purchaser of the articles and he had purchased them for adequate consideration.

In Shenath v. State of U.P

189

, cloth stolen in a dacoity was recovered, from the

accused, a cloth merchant. His name was not mentioned as one of the participants in

188

1979 Crl. L.J. 309 All. H.C.

199

dacoity either by any eye witness or in dying declaration of the person who was killed in

the dacoity. More over the facts showed that the accused only knew that the goods were

stolen but he did not know that they were stolen in dacoity. Hence Supreme Court held that

he can be convicted only under S. 411 and not under S. 396 I.P.C.

CHEATING (S. 415)

Section 415 of the Code defines the offence of cheating. A person is liable for the

offence of cheating, if the following conditions are satisfied:

(1) He should have deceived any person.

(2) He should have fraudulently or dishonestly induced the person so deceived:

(a) (a) To deliver any property to any person, or

(b) (b) To consent that any person shall retain any property; or

(3) He should have intentionally induced any person so deceived to do or omit to do

anything and that act or omission caused damage or harm to that person in body or mind,

reputation or property.

Explanation for S.415 provides that a dishonest concealment of facts is deception

within the meaning of this Section.

Illustrations

(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus

dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A

cheats.

(b) A, by putting a counterfeit make on an article, intentionally deceives Z into a belief

that this article was made by a certain celebrated manufacturer, and thus dishonestly

induces Z to buy and pay for the article. A cheats.

believer that the article corresponds with the sample, and thereby, dishonestly induces Z to

buy and pay for the article. A cheats.

189

A.I.R. 1970 S.C 535.

200

(d) A, by tendering in payment for an article a bill on a house with which A keeps on

money, and by which A expects that the will be dishonoured, intentionally deceives Z, and

thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.

(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally

deceives Z, and thereby dishonestly induces Z to lend money. A cheats.

(f) A intentionally deceives Z into a belief that A means to repay any money that Z may

led to him and thereby dishonestly induces Z to lend him money. A not intending to repay

it A cheats.

(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity

of indigo plant which he does not intend to deliver and thereby dishonestly induces Z to

advance money upon the faith of such deliver. A cheats; but if A, at the of obtaining the

money, intends to deliver the indigo plant, and afterwards breaks his contract and does not

deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract

made with Z, which he has not performed, and thereby dishonestly induces Z to pay

money. A cheats.

(i) A sells and coveys an estate to B.A, knowing that in consequence of such sale he has

no right to the property, sells or mortgages the same to Z, without disclosing the fact of the

previous sale and conveyance to B, and receives the purchase or mortgage money for Z. A

cheats.

In State v. Ramdas Naidu

190

, the accused persons had obtained loans from the Land

Development Bank for digging new wells in their agricultural lands and purchasing new oil

engines without actually doing any of these things. But the Bank had not suffered any loss

on account of these transactions as the loans were fully recovered by the security of

immovable properties and the loans had been repaid in full. But the accused persons were

convicted for cheating under Ss. 415 and 420.

In Sushil Kumar Datta v. State

191

, a person wrongfully declared himself to belong to

the scheduled caste and wrote the I.A.S. Examination. He obtained the benefit of the

190

1977 Cr. L.J. 2048.

191

1985 Cr. L.J.1948.

201

relaxed standard of examination and got appointed as I.A.S. officer. Later, on detecting the

fraud it was held that he had cheated the U.P.S.C. and the Government of India.

Punishment for Cheating (S. 417)

Whoever cheats shall be punished with imprisonment of either description for a term

which may extend to one year, or with fine. or with both.

Cheating by Personation (S. 416)

A person is said to “cheat by personation” if he cheats by pretending to be some other

person, or by knowingly substituting one person for another, or representing that he or any

other person is a person other than he or such other person really is.

Explanation for S. 419 provides that the offence is committed whether the individual

personated is a real or imaginary person.

Illustration

(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by

personation.

(b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.

Cheating with Knowledge that Wrongful Loss may Ensue to Person whose Interest

Offender is Bound to Protect (S. 418)

Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss

to a person whose interest in the transaction to which the cheating relates, he was found,

either by law, or by a legal contract, to protect, shall be punished with imprisonment of

either description for a term which may extend to three years, or with fine, or with both.

Punishment for Cheating by Personation (S. 419)

Whoever cheats by personation shall be punished with imprisonment of either

description for a term which may extend to three years, or with fine, or with both.

Cheating and Dishonestly Inducing Delivery of Property (S.420)

Whoever cheats and thereby dishonestly induces the person deceived any property to

any person, or to make, alter or destroy the whole or any part of a valuable security, or

anything which is signed or sealed, and which is capable of being converted into a valuable

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security, shall be punished with imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine.

In Joseph v. State of Kerala

192

, it was held that to hold a person guilty of the offence

of cheating it has to be shown that the intention was dishonest at the time of making the

promise.

Dishonest or Fraudulent Removal or Concealment of Property to Prevent Distribution

among Creditors (S. 421)

Whoever dishonestly or fraudulently removes, conceals or delivers to any person, or

transfer or causes to be transferred to any person, without adequate consideration, any

property, intending thereby to prevent, or knowing it to be likely that he will thereby

prevent, the distribution of that property according to law among his creditors or the

creditors of any other person, shall be punished with imprisonment of either description for

a term which may extend to two years, or with fine, or with both.

Dishonestly or Fraudulently Preventing Debt being Available for Creditors (S.422)

Whoever dishonestly or fraudulently prevents any debt or demand due to himself or

to any other person from being made available according to law for payment of his debts or

the debts of such other person shall be punished with imprisonment of either description for

a term which may extend to two years, or with fine, or with both.

Dishonest or Fraudulent Execution of Deed of Transfer Containing False Statement of

Consideration (S.423)

Whoever dishonestly or fraudulently signs, executes or becomes a party to any

instrument which contains any false statement relating to the consideration for such transfer

or charge, or relating to the person or persons for whose use or benefit it is really intended

to operate, shall be punished with imprisonment of either description for a term which may

extend to two years, or with fine, or with both.

Dishonest or Fraudulent Removal or Concealment of Property (S. 424)

Whoever dishonestly or fraudulently conceals or removes any property of himself or

any other person, or dishonestly or fraudulently assists in the concealment or removal

192

2000 (3) KLT SN 48.

203

thereof, or dishonestly releases any demand or claim to which he is entitled, shall be

punished with imprisonment of either description for a term which may extend to two

years, or with fine, or with both.

MISCHIEF (S. 425)

A person is liable to be punished for mischief if the following conditions are to be

satisfied:

1. He should have caused destruction of some property or any change in it or in its

situation.

2. The destruction or change must have destroyed or diminished the property’s value.

3. The destruction or change should have been done with the intention or knowledge to

cause wrongful loss or damage to the public or to any person.

Explanation 1 for S. 425 provides that it is not essential to the offence of mischief that

the offender should intend to cause loss or damage to the owner of the property injured or

destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause,

wrongful loss or damage to any person by injuring any property, whether it belongs to that

person or not.

Explanation 2 for S.425 provides that mischief may be committed by an act affecting

property belonging to the person who commits the act, or to that person and others jointly.

Illustrations

(a) A voluntarily burns a valuable security belonging to Z intending to cause wrongful

loss to Z. A has committed mischief.

(b) A introduces water into an ice-house belonging to Z and thus causes the ice to melt,

intending wrongful loss to Z. A has committed mischief.

causing wrongful loss to Z. A has committed mischief.

(d) A, knowing that his effects are about to be taken in execution in order to satisfy a debt

due from him to Z, destroys those effects, with the intention of thereby preventing Z from

204

obtaining satisfaction of the debt, and of thus causing damage to Z. A has committed

mischief.

(e) A, having insured a ship, voluntarily causes the same to be cast away, with the

intention of causing damage to the under-writers. A has committed mischief

(f) A causes a ship to be cast away, intending thereby to cause damage to Z who has lent

money on bottomry on the ship. A has committed mischief.

(g) A, having joint property with Z in a horse, shoots the horse, intending thereby to cause

wrongful loss to Z. A has committed mischief.

(h) A causes cattle to enter upon a field belonging to Z, intending to cause and knowing

that he is likely to cause damage to Z’s crop. A has committed mischief.

In Ram Birich v. Bishwanath

193

, the court held that the offence of mischief may

be committed in respect of both movable and immovable property.

Punishment for Mischief (S. 426)

Imprisonment of either description for a term which may extend to three months, or

with fine, or with both.

Mischief Causing Damage to the Amount of Fifty Rupees (S. 427)

Whoever commits mischief and thereby causes loss or damage to the amount of fifty

rupees or upwards, shall be punished with imprisonment of either description for a term

which may extend to two years, or with fine, or with both.

Mischief by Killing or Maiming Animal of the Value of Ten Rupees (S.428)

Whoever commits mischief by killing, poisoning, maiming or rendering useless any

animal or animals of the value of ten rupees or upwards, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine,

or with both.

Mischief by Killing or Maiming Cattle, Etc., of any Value or any Animal of the value of

Fifty Rupees (S. 429)

193

1961 (2) Cr.L.J. 265.

205

Whoever commits mischief by killing, poisoning, maiming or rendering useless, any

elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof,

or any other animal of the value of fifty rupees or upwards, shall be punished with

imprisonment of either description for a term which may extend to five years, or with fine,

or with both.

Mischief by Injury to Works of Irrigation or by Wrongfully Diverting Water (S. 430)

Whoever commits mischief by doing any act which causes, or which he knows to be

likely to cause, a diminution of the supply of the water for agricultural purposes, or for food

or drink for human beings or for animals which are property, or cleanliness or for carrying

on any manufacture, shall be punished with imprisonment of either description far a term

which may extend to five years, or with fine, or with both.

Mischief by Injury to Public Road, Bridge, River or Channel (S. 431)

Whoever commits mischief by doing any act which renders or which he knows to be

likely to render any public road, bridge, navigable river or navigable channel, natural or

artificial, impassable or less safe for travelling or conveying property, shall be punished

with imprisonment of either description for a term which may extend to five years, or with

fine, or with both.

Mischief by Causing Inundation or Obstruction to Public Drainage Attended with Damage

(S.432)

Whoever commits mischief by doing any act which causes or which he knows to be

likely to cause an inundation or an obstruction to any public drainage attended with injury

or damage, shall be punished with imprisonment of either description for term which may

extend to five years, or with fine, or with both.

Mischief by Destroying, Moving or Rendering less Useful a Light-House or Sea-Mark

(S.433)

Whoever commits mischief by destroying or moving any light-house or other light

used as a sea-mark or any sea-mark or buoy or other thing placed as a guide for navigators,

or by any act which renders any such light-house, sea-mark, buoy or other such thing as

206

aforesaid less useful as a guide for navigators, shall be punished with imprisonment of

either description for a term which may extend to seven years, or with fine, or with both.

Mischief by Destroying or Moving, etc., a Land- Mark Fixed by Public Authority (S.434)

Whoever commits mischief by destroying or moving any land-mark fixed by the

authority of a public servant, or by any act which renders such land-mark less useful as

such, shall be punished with imprisonment of either description for a term which may

extend to one year, or with fine, or with both.

Mischief by Fire or Explosive Substance with Intent to Cause Damage to Amount of one

Hundred or (In Case of Agricultural Produce) Ten Rupees (S.435)

Whoever commits mischief by fire or any explosive substance intending to cause, or

knowing it to be likely that he will thereby cause, damage to any property to the amount of

one hundred rupees or upwards or (where the property is agricultural produce) ten rupees or

upwards, shall be punished with imprisonment of either description for a term which may

extend to seven years, and shall also be liable to fine.

Mischief by Fire or Explosive Substance with Intent to Destroy House, etc (S.436)

Whoever commits mischief by fire or any explosive substance, intending to cause, or

knowing it to be likely that he will thereby cause, the destruction of any building which is

ordinarily used as a place of worship or as a human dwelling or as a place for the custody

of property, shall be punished with imprisonment for life, or with imprisonment of either

description for a term which may extend to ten years, and shall also be liable to fine.

Mischief with Intent to Destroy or Make Unsafe a Decked Vessel or one of Twenty Tons

Burden (S.437)

Whoever commits mischief to any decked vessel or nay vessel of a burden of twenty

tons or upwards, intending to destroy or render unsafe, or knowing it to be likely that he

will thereby destroy or render unsafe, that vessel, shall be punished with imprisonment of

either description for a term which may extend to ten years, and shall also be liable to fine.

Punishment for the Mischief Described in Section 437 Committed by Fire or Explosive

Substance (S.438)

207

Whoever commits, or attempts to commit, by fire or any explosive substance, such

mischief as is described in the last preceding Section, shall be punished with imprisonment

for life, or with imprisonment or either description for a term which may extend to ten

years, and shall also be liable to fine.

Punishment for Intentionally Running Vessel Aground or Ashore with Intent to Commit

Theft, etc (S.439)

Whoever intentionally runs any vessel aground or ashore, intending to commit theft of

any property contained therein or to dishonestly misappropriate any such property, or with

intent that such theft or misappropriation of property may be committed, shall be punished

with imprisonment of either description for a term which may extend to ten years, and shall

also be liable to fine.

Mischief Committed After Preparation Made for Causing Death or Hurt (S.440)

Whoever commits mischief having made preparation for causing to any person death,

or hurt, or wrongful restraint, or fear of death or of hurt, or of wrongful restraint, shall be

punished with imprisonment of either description for a term which may extend to five years

and shall also be liable to fine.

TRESPASS

Criminal Trespass (S .441)

A person is liable to be punished for criminal trespass, if the following conditions are

to be satisfied:

1. He should have entered into or upon the property of another with intent to commit an

offence or to intimidate, insult or annoy any person in possession of such property, or

2. He should have lawfully entered into or upon the property of another and unlawfully

remained there with intent to intimidate, insult or annoying such person or with intent to

commit an offence.

208

In Trilochan Singh v. Director, S.I.S. Institute

194

, the accused entered the house of an

innocent girl to give her a love letter. The accused was a stranger to her. The court held

that it is criminal trespass, since it will annoy the girl.

In Mohan Singh v. State

195

, the court held that an entry under a licence or tenancy and

continuing to be there after the expiry of the term does not in itself constitute an offence. It

is at the most a matter of civil nature and the eviction should be effected through civil

proceedings.

House Trespass (S .442)

Whoever commits criminal trespass by entering into or remaining in any building, tent

or vessel used as a human dwelling or any building used as a place for worship, or as a

place for the custody of property, is said to commit “house-trespass”.

Explanation for S. 442 provides that the introduction of any part of the criminal

trespasser’s body is entering sufficient to constitute house-trespass.

Lurking House-Trespass (S. 443)

Whoever commits house-trespass having taken precautions to conceal such house-

trespass from some person who has a right to exclude or eject the trespasser from the

building, tent or vessel which is the subject of the trespass, is said to commit “lurking

house-trespass”.

Lurking House-Trespass by Night(S .444)

Whoever commits lurking house-trespass after sunset and before sunrise, is said to

commit “lurking house-trespass by night”.

House Breaking (S .445)

A person is said to commit “house-breaking” who commits house-trespass if he

effects his entrance into the house or any part of it in any of the six ways hereinafter

described; or if, being in the house or any part of it for the purpose of committing an

offence or having committed an offence therein, he quits the house or any part of it in any

of such six ways, that is to say: --

194

(1953) Cr.L.J. 200

195

1989 Cr.L.J. 1199 (J&K)

209

1. If he enters or quits through a passage by himself, or by any abettor of the house-

trespass, in order to the committing of the house-trespass.

Illustration

A commits house-trespass by making a hole through the wall of Z’s house, and

putting his hand through the aperture. This is house-breaking.

2. If he enters or quits through any passage not intended by any person, other than

himself or an abettor of the offence, for human entrance; or through any passage to which

he has obtained access by scaling or climbing over any wall or building.

Illustrations

(1) A commits house-trespass by creeping into a ship at a port-hole between decks.

This is house-breaking.

(2) A commits house-trespass by entering Z’s house through a window. This is house-

breaking.

3. If he enters or quits through any passage which he or any abettor of the house-trespass

has opened, in order to the committing of the house-trespass by any means by which that

passage was not intended by the occupier of the house to be opened.

Illustration

A commits house-trespass by entering Z’s house through the door, having lifted a

latch by putting a wire through a hole in the door. This is house-breaking.

4. If he enters or quits by opening any lock in order to the committing of the house-

trespass, or in order to the quitting of the house after a house-trespass.

Illustration

A finds the key of Z’s house door, which Z had lost, and commits house-trespass by

entering Z’s house, having opened the door with that key. This is house-breaking.

5. If he effects his entrance or departure by using criminal force or committing an assault

or by threatening any person with assault.

Illustrations

210

(1) Z is standing in his doorway. A forces a passage by knocking Z down, and

commits house-trespass by entering the house. This is house-breaking.

(2) Z, the door-keeper of Y, is standing in Y’s doorway. A commits house-trespass by

entering the house, having deterred Z from opposing him by threatening to beat him. This is

house-breaking.

6. If he enters or quits by any passage which he knows to have been fastened against

such entrance or departure, and to have been unfastened by himself or by an abettor of the

house-trespass.

Explanation

Any out-house or building occupied with a house and between which and such house

there is an immediate internal communication, is part of the house within the meaning of

this Section.

House-Breaking by Night (S. 446)

Whoever commits house-breaking after sunset and before sunrise, is said to commit

“house-breaking by night”.

Punishment for Criminal Trespass (S .447)

Imprisonment of either description for a term which may extend to three months, with

fine or which may extend to five hundred rupees, or with both.

Punishment for House-Trespass (S. 448)

Imprisonment of either description for a term which may extend to one year, or with

fine or which may extend to one thousand rupees, or with both.

House-Trespass in Order to Commit Offence Punishable with Death (S. 449)

Imprisonment for life, or with rigorous imprisonment for a term not exceeding ten

years, and shall also be liable to fine.

House-Trespass in Order to Commit Offence Punishable with Imprisonment for Life

(S.450)

211

Whoever commits house-trespass in order to the committing of any offence

punishable with imprisonment for life, shall be punished with imprisonment of either

description for a term not exceeding ten years, and shall also be liable to fine.

House-Trespass in Order to Commit Offence Punishable with Imprisonment (S. 451)

Whoever commits house-trespass in order to the committing of any offence

punishable with imprisonment, shall be punished with imprisonment of either description

for a term which may extend to two years, and shall also be liable to fine; and if the offence

intended to be committed is theft, the term of the imprisonment may be extended to seven

years.

House-Trespass after Preparation for Hurt, Assault or Wrongful Restraint (S. 452)

Whoever commits house-trespass, having made preparation for causing hurt to any

person or for assaulting any person, or for wrongfully restraining any person, or for putting

any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine.

Punishment for Lurking House-Trespass or House-Breaking (S.453)

Imprisonment of either description for a term which may extend to two years, and

shall also be liable to fine.

Lurking House-Trespass or House-Breaking in Order to Commit Offence Punishable with

Imprisonment (S. 454)

Whoever commits lurking house-trespass or house-breaking, in order to the

committing of any offence punishable with imprisonment, shall be punished with

imprisonment of either description for a term which may extend to three years, and shall

also be liable to fine; and if the offence intended to be committed is theft, the term of the

imprisonment may be extended to ten years.

Lurking House-Trespass or House-Breaking after Preparation for Hurt, Assault or

Wrongful Restraint (S. 455)

Whoever commits lurking house-trespass, or house-breaking, having made

preparation for causing hurt to any person, or for assaulting any person, or for wrongfully

212

restraining any person, or for putting any person in fear of hurt or of assault or of wrongful

restraint, shall be punished with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.

Punishment for Lurking House-Trespass or House-Breaking by Night (S. 456)

Whoever commits lurking house-trespass by night, or house-breaking by night, shall

be punished with imprisonment of either description for a term which may extend to three

years, and shall also be liable to fine.

Lurking House Trespass or House-Breaking by Night in Order to Commit Offence

Punishable with Imprisonment (S.457)

Whoever commits lurking house-trespass by night, or house-breaking by night, in

order to the committing of any offence punishable with imprisonment, shall be punished

with imprisonment of either description for a term which may extend to five years, and

shall also be liable to fine; and, if the offence intended to be committed is theft, the term of

the imprisonment may be extended to fourteen years.

Lurking House-Trespass or House-Breaking by Night after Preparation for Hurt, Assault,

or Wrongful Restraint (S.458)

Whoever commits lurking house-trespass by night, or house-breaking by night,

having made preparation for causing hurt to any person or for assaulting any person, or for

wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or

of wrongful restraint, shall be punished with imprisonment of either description for a term

which may extend to fourteen years, and shall also be liable to fine.

Grievous Hurt Caused Whilst Committing Lurking House Trespass or House-Breaking (S

.459)

Whoever, whilst committing lurking house-trespass or house-breaking, causes

grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall

be punished with imprisonment for life, or imprisonment of either description for a term

which may extend to ten years, and shall also be liable to fine.

All Persons Jointly Concerned in Lurking House-Trespass or House-Breaking by Night

Punishable where Death or Grievous Hurt Caused by one of them (S. 460)

213

If, at the time of the committing of lurking house-trespass by night or house-breaking

by night, any person guilty of such offence shall voluntarily cause or attempt to cause death

or grievous hurt to any person, every person jointly concerned in committing such lurking

house-trespass by night or house-breaking by night, shall be punished with imprisonment

for life, or with imprisonment of either description for a term which may extend to ten

years, and shall also be liable to fine.

Dishonestly Breaking Open Receptacle Containing Property (S. 461)

Whoever dishonestly or with intent to commit mischief, breaks open or unfastens any

closed receptacle which contains or which be believes to contain property, shall be

punished with imprisonment of either description for a term which may extend to two

years, or with fine, or with both.

Punishment for Same Offence when Committed by Person Entrusted with Custody (S. 462)

Imprisonment of either description for a term which may extend to three years, or

with fine, or with both.

FORGERY (S 463)

A person is liable to be punished for forgery if the following conditions are to be

satisfied:

1. He should have made any false document or electronic record or part of a document or

electronic record.

2. The intention of such making may be any of the following:

(a) To cause damage or injury to the public or to any person; or

(b) To support any claim or title; or

(d) To enter into any express or implied contract; or

(e) To commit fraud.

Making a False Document (S. 464)

214

A person is said to make a false document:

1. Who dishonestly or fraudulently makes, signs, seals or executes a document or part of

a document, or makes any mark denoting the execution of a document, or authority of the

digital signature with the intention of causing it to be believed that such document makes or

transmits any electronic record or part of any electronic record, affix any digital signature

or any electronic record or part of a document electronic record or digital signature was

made, signed, sealed or executed transmitted or affixed exceed by or by the authority of a

person by whom or by whose authority he knows that it was not made, signed, sealed,

executed or affixed; or

2. Who, without lawful authority, dishonestly or fraudulently, by cancellation or

otherwise, alters a document in any material part thereof, after it has been made or executed

either by himself or by any other person, whether such person be living or dead at the time

of such alteration; or

3. Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a

document, or an electronic record or to fix his digital signature or any electronic record

knowing that such person by reason of unsoundness of mind or intoxication cannot, or that

by reason of deception practiced upon him, he does not know the contents of the document

or the nature of the alteration.

Illustrations

(a) A has a letter of credit upon B for rupees 10,000 written by Z. A, in order to defraud

B, adds a cipher to the 10,000, and makes the sum 1,00,000 intending that it may be

delivered by B that Z so wrote the letter. A has committed forgery.

(b) A, without Z’s authority affixes Z’s seal to document purporting to be a conveyance

of an estate from Z to A, with the intention of selling the estate to B, and thereby of

obtaining from B the purchase-money. A has committed forgery.

having been inserted in the cheque. A fraudulently fills up the cheque by inserting the sum

of ten thousand rupees. A commits forgery.

215

(d) A leaves with B, his agent, a cheque on a banker, signed by A, without inserting the

sum payable and authorizes B to fill up the cheque by inserting a sum not exceeding ten

thousand rupees for the purpose of making certain payments. B fraudulently fills up the

cheque by inserting the sum or twenty thousand rupees. B commits forgery.

(e) A draws a bill of exchange on himself in the name of B without B’s authority,

intending to discount it as a genuine bill with a banker and intending to take up the bill on

its maturity. Here, as A draws the bill with intent to deceive the banker by leading him to

suppose that he had the security of B, and thereby to discount the bill, A is guilty of

forgery.

(f) Z’s will contains these words—“I direct that all my remaining property be equally

divided between A, B and C.” A dishonestly scratches out B’s name, intending that it may

be believed that the whole was left to himself and C. A has committed forgery.

(g) A endorses a Government promissory note and makes it payable to Z or his order by

writing on the bill the words “Pay to Z or his order” and signing the endorsement. B

dishonestly erases the words “Pay to Z or his order”, and thereby converts the special

endorsement into a blank endorsement. B commits forgery.

(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his estate,

executes a conveyance of the same estate to B, dated six months earlier than the date of the

conveyance to Z, intending it to be believed that he had conveyed the estate to B before he

conveyed it to Z. A has committed forgery.

(i) Z dictates his will to A. A intentionally writes down a different legatee for the legatee

named by Z, and by representing to Z that he has prepared the will according to his

instructions, induces Z to sign the will. A has committed forgery.

(j) A writes a letter and signs it with B’s name without B’s authority, certifying that A is a

man of good character and in distressed circumstances form unforeseen misfortune,

intending by means of such letter to obtain alms from Z and other persons. Here, as A made

a false document in order to induce Z to part with property. A has committed forgery.

(k) A without B’s authority writes a letter and signs it in B’s name certifying to A’s

character, intending thereby to obtain employment under Z. A has committed forgery in as

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much as he intended to deceive Z by the forged certificate, and thereby to induce Z to enter

into an express or implied contract for service.

Explanation 1 for S.464 provides that a man’s signature of his own name may amount

to forgery.

Illustrations

(a) A signs his own name to a bill of exchange, intending that it may be believed that the

bill was drawn by another person of the same name. A has committed forgery.

(b) A writes the word “accepted” on a piece of paper and signs it with Z’s name, in order

that B may afterwards write on the paper a bill of exchange drawn by B upon Z, and

negotiate the bill as though it had been accepted by Z. A is guilty of forgery; and if B,

knowing the fact, draws the bill upon the paper pursuant to A’s intention, B is also guilty of

forgery.

name. A endorses the bill in his own name, intending to cause it to be believed that it was

endorsed by the person whose order it was payable, here A has committed forgery.

(d) A purchases an estate sold under execution of a decree against B. B, after the seizure

of the estate, in collusion with Z, executes a lease of the estate of Z at a nominal rent and

for a long period and dates the lease six months prior to the seizure, with intent to defraud

A, and to cause it to be believed that the lease was granted before the seizure, B, though he

executes the lease in his own name, commits forgery by antedating it.

(e) A, a trader, in anticipation of insolvency, lodges effects with B for A’s benefit, and

with intent to defraud his creditors; and in order to give a colour to the transaction, writes a

promissory note binding himself to pay to B a sum for value received, and antedates the

note, intending that it may be believed to have been made before A was on the point of

insolvency. A has committed forgery under the first head of the definition.

Explanation 2 for S.464 provides that the making of a false document in the name of

a fictitious person, intending it to be believed that the document was made by a real person,

or in the name of deceased person, intending it to be believed that the document was made

by the person in his lifetime, may amount to forgery.

217

Illustration

A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill

in the name of such fictitious person with intent to negotiate it. A commits forgery.

In Shankerlal Vishwakarma v. State of M.P

196

, a school inspector prepared under his

signature false pay bills containing false claims for salaries of teachers who had not worked

within his jurisdiction, some of whom being purely fictitious, and encashed them from the

treasury. He was held to be guilty of making a false document but not of forgery because

he had not made the signature or writing of another, nor had altered the pay bills.

Punishment for Forgery (S.465)

Imprisonment of either description for a term which may extend to two years, or with

fine, or with both.

Forgery of Record of Court or of Public Register, etc (S.466)

Whoever forges a document, purporting to be a record or proceeding of or in a Court

of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public

servant as such, or a certificate or document purporting to be made by a public servant in

his official capacity, or an authority to institute or defend a suit, or to take any proceedings

therein, or to confess judgment, or a power of attorney, shall be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine.

Forgery of Valuable Security, will, etc (S.467)

Whoever forges a document which purports to be a valuable security or a will, or an

authority to adopt a son, or which purports to give authority to any person to make or

transfer any valuable security, or to receive the principal, interest or dividends thereon, or

to receive or deliver any money, moveable property, or valuable security, or any document

purporting to be an acquaintance or receipt acknowledging the payment of money, or an

acquaintance or receipt for the delivery of any moveable property or valuable security, shall

be punished with imprisonment for life, or with imprisonment of either description for a

term which may extend to ten years, and shall also be liable to fine.

196

1991 Cr.L.J. 2808 M.P

218

Forgery for Purpose of Cheating (S.468)

Whoever commits forgery, intending that the document forged shall be used for the

purpose of cheating, shall be punished with imprisonment of either description for a term

which may extend to seven years, and shall also be liable to fine.

Forgery for Purpose of Harming Reputation (S.469)

Whoever commits forgery, intending that the document forged shall harm the

reputation of any party, or knowing that it is likely to used for that purpose, shall be

punished with imprisonment of either description for a term which may extend to three

years, and shall also be liable to fine.

Forged Document (S.470)

A false document made wholly or in part by forgery is designated “a forged

document”.

Using as Genuine a Forged Document (S.471)

Whoever fraudulently or dishonestly uses as genuine any document which he knows

or has reason to believe to be a forged document, shall be punished in the same manner as

if he had forged such document.

Making or Possessing Counterfeit Seal, etc., with Intent to Commit Forgery. (S.472)

Whoever makes or counterfeits any seal, plate or other instrument for making an

impression, intending that the same shall be used for the purpose of committing any forgery

which would be punishable under Section 467 of this Code, or, with such intent, has in his

possession any such seal, plate or other instrument, knowing the same to be counterfeit,

shall be punished with imprisonment for life, or with imprisonment of either description for

a term which may extend to seven years, and shall also be liable to fine.

Making or Possessing Counterfeit Seal, etc., with Intent to Commit Forgery Punishable

Otherwise (S.473)

Whoever makes or counterfeit any seal, plate or other instrument for making an

impression, intending that the same shall be used for the purpose of committing any forgery

which would be punishable under any Section of this Chapter other than Section 467, or,

219

with such intent, has in his possession any such seal, plate or other instrument, knowing the

same to be counterfeit, shall be punished with imprisonment of either description for a term

which may extend to seven years, and shall also be liable to fine.

Having Possession of Document Described in Section 466 or 467, Knowing it to be Forged

and Intending to Use it as Genuine (S. 474)

Whoever has in his possession any document, knowing the same to be forge, and

intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the

document is one of the description mentioned in Section 466 of this Code, be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine ; and if the document is one of the description mentioned in Section

467, shall be punished with imprisonment for life, or with imprisonment of either

description, for a term which may extend to seven years, and shall also be liable to fine.

Counterfeiting Device or Mark Used for Authenticating Documents Described in Section

467, or Possessing Counterfeit Marked Material (S.475)

Whoever counterfeits upon, or in the substance or, any material, any device or mark

used for the purpose of authenticating any document described in Section 467 of this Code,

intending that such device or mark shall be used for the purpose of giving the appearance of

authenticity to any document then forged or thereafter to be forged on such material, or

who, with such intent, has in his possession any material upon or in the substance of which

any such device or mark has been counterfeited, shall be punished with imprisonment for

life, or with imprisonment of either description for a term which may extend to seven years,

and shall also be liable to fine.

Counterfeiting Device or Mark Used for Authenticating Documents other than those

Described in Section 467, or Possessing Counterfeit Marked Material (S.476)

Whoever counterfeits upon, or in the substance of, any material, any device or mark

used for the purpose of authenticating any document other than the documents described in

Section 467 of this Code, intending that such device or mark shall be used for the purpose

of giving the appearance of authenticity to any document then forged or thereafter to be

forged on such material, or who with such intent, has in his possession any material upon or

in the substance, of which any such device or mark has been counterfeited, shall be

220

punished with imprisonment of either description for a term which may extend to seven

years, and shall also be liable to fine.

Fraudulent Cancellation, Destruction, etc., of will, Authority to Adopt, or Valuable

Security (S.477)

Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the

public or to any person, cancels, destroys or defaces, or attempts to cancel, destroy or

deface, or secretes or attempts to secrete any document which is or purports to be a will, or

an authority to adopt a son, or any valuable security, or commits mischief in respect of such

document, shall be punished with imprisonment for life, or with imprisonment of either

description for a term which may extend to seven years, and shall also be liable to fine.

Falsification of Accounts (S.477A)

Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a

clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or

falsifies any book, paper, writing, valuable security or account which belongs to or is in the

possession of his employer, or has been received by him for or on behalf of his employer,

or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or

omits or alters or abets the omission or alteration of any material particular of any material

particular form or in, any such book, paper, writing, valuable security or account, shall be

punished with imprisonment of either description for a term which may extend to seven

years, or with fine, or with both.

Explanation

It shall be sufficient in any charge under this Section to allege a general intent to

defraud without naming any particular person intended to be defraud without naming any

particular person intended to be defrauded or specifying any particular sum of money

intended to be the subject of the fraud, or any particular day on which the offence was

committed.

Using a False Property Mark (S.481)

Whoever marks any moveable property or goods or any case, package or other

receptacle containing moveable property or goods, or uses any case, package or other

221

receptacle having any mark thereon, in a manner reasonably calculated to cause it to be

believed that the property or goods so marked, or any property or goods contained in any

such receptacle so marked, belong to a person to whom they do not belong, is said to use a

false property mark.

Punishment for Using a False Property Mark (S.482)

Imprisonment of either description for a term which may extend to one year, or with

fine, or with both.

Counterfeiting a Property Mark Used by another (S. 483)

Whoever counterfeits any property mark used by any other person shall be punished

with imprisonment of either description for a term which may extend to two years, or with

fine, or with both.

Counterfeiting a Mark Used by a Public Servant (S .484)

Whoever counterfeits any property mark used by a public servant, or any mark used

by a public servant to denote that any property has been manufactured by a particular

person or at a particular time or place, or that the property is of a particular quality of has

passed though a particular office, or that it is entitled to any exemption, or uses as genuine

any such mark knowing the same to be counterfeited, shall be punished with imprisonment

of either description for a term which may extend to three years, and shall also be liable to

fine.

Making or Possession of any Instrument for Counterfeiting a Property Mark (S .485)

Whoever makes or has in his possession any die, plate or other instrument for the

purpose of counterfeiting a property mark, or has in his possession a property mark for the

purpose of denoting that any goods belong to a person to whom they do not belong, shall be

punished with imprisonment of either description for a term which may extend to three

years or with fine, or with both.

Selling Goods Marked with a Counterfeit Property Mark (S. 486)

222

Whoever sells, or exposes, or has in possession for sale, any goods or things with a

counterfeit property mark affixed to or impressed upon the same to or upon any case,

package or other receptacle in which such goods are contained, shall, unless he proves—

(a) That, having taken all reasonable precautions against committing an offence against

this Section, he had at the time of the commission of the alleged offence no reason to

suspect the genuineness of the mark, and

(b) That, on demand made by or on behalf of the prosecutor, he gave all the information

in his power with respect to the persons from whom he obtained such goods or things, or

description for a term which may extend to one year, or with fine, or with both.

Making a False Mark upon any Receptacle Containing Goods (S .487)

Whoever makes any false mark upon any case, package or other receptacle

containing goods, in a manner reasonably calculated to cause any public servant or any

other person to believe that such receptacle contains goods which it does not contain or that

it does not contain goods which it does contain, or that the goods contained in such

receptacle are of a nature or quality different from the real nature or quality thereof, shall,

unless he proves that he acted without intent to defraud, be punished with imprisonment of

either description for a term which may extend to three years, or with fine, or with both.

Punishment for Making Use of any Such False Mark (S .488)

Whoever makes use of any such false mark in any manner prohibited by the last

foregoing Section shall, unless he proves that he acted without intent to defraud, be

punished as if he had committed an offence against that Section.

Tempering with Property Mark with Intent to Cause Injury (S. 489)

Whoever removes, destroys, defaces or adds to any property mark, intending or

knowing it to be likely that he may thereby cause injury to any person, shall be punished

with imprisonment of either description for a term which may extend to one year, or with

fine, or with both.

Counterfeiting Currency-Notes or Bank-Notes (S. 489A)

223

Whoever counterfeits, or knowingly performs any part of the process of

counterfeiting, any currency-note or bank-note, shall be punished with imprisonment for

life, or with imprisonment of either description for a term which may extend to ten years,

and shall also be liable to fine.

Explanation

For the purposes of this Section and of Sections 489B, 489C, 489D and 489E, the

expression “bank-note” means a promissory note or engagement for the payment of money

to bearer on demand issued by any person carrying on the business of banking in any part

of the world, or issued by or under the authority of any State or Sovereign Power, and

intended to be used as equivalent to, or as a substitute for money.

Using as Genuine, Forged or Counterfeit Currency-Notes or Bank-Notes (S .489B)

Whoever sells to, or buys or receives from, any other person, or otherwise traffics in

or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or

having reason to believe the same to be forged or counterfeit, shall be punished with

imprisonment for life, or with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.

Possession of Forged or Counterfeit Currency-Notes or Bank-Notes (S. 489C)

Whoever has in his possession any forged or counterfeit currency-note or bank-note,

knowing or having reason to believe the same to be forged or counterfeit and intending to

use the same as genuine or that it may be used as genuine, shall be punished with

imprisonment of either description for a term which may extend to seven years, or with

fine, or with both.

Making or Possessing Instruments or Materials for Forgoing or Counterfeiting Currency-

Notes or Bank-Notes (S. 489D)

Whoever makes, or performs, any part or the process of making, or buys or sells or

disposes of, or has in his possession, any machinery, instrument or material for the purpose

of being used, or knowing or having reason to believe that it is intended to be used, for

forging or counterfeiting any currency-note or bank-note, shall be punished with

224

imprisonment for life, or with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.

Making or Using Documents Resembling Currency-Notes or Bank-Notes (S. 489E)

(1) Whoever makes, or causes to be made, or uses for any purpose whatsoever, or delivers

to any person, any document purporting to be, or in any way resembling, or so nearly

resembling as to be calculated to deceive any currency-note or bank shall be punished with

fine which may extend to one hundred rupees.

(2) If any person, whose name appears on a document the making of which is an offence

under sub-Section (1), refuses, without lawful excuse, to disclose to a police-officer on

being so required the name and address of the person by whom it was printed or otherwise

made, he shall be punished with fine which may extend to two hundred rupees.

(3) Where the name of any person appears on any document in respect of which any

person is charged with an offence under sub-Section (1) or on any other document used or

distributed in connection with that document it may, until the contrary is proved, be

presumed that person caused the document to be made.

Breach of Contract to Attend on and Supply Wants of Helpless Person (S .491)

Whoever, being bound by a lawful contract to attend on or to supply the wants of any

person who, by reason or youth, or of unsoundness of mind, or of a disease or bodily

weakness, is helpless or incapable of providing for his own safety or of supplying his own

wants, voluntarily omits so to do, shall be punished with imprisonment of either description

for a term which may extend to three months, or with fine which may extend to two

hundred rupees, or with both.

Breach of Contract to Serve at Distant Place to which Servant is Conveyed at Master’s

Expense (S. 492)

TOPIC 10

OFFENCES RELATING TO MARRIAGE

The offences relating to marriage can be classified under four head namely-

225

(a) Mock marriage

(b) Bigamy

(d) Elopement

Cohabitation Caused by a Man Deceitfully Inducing a Belief of Lawful Marriage (S. 493)

Every man who by deceit causes any woman who is not lawfully married to him to

believe that she is lawfully married to him and to cohabit or have sexual intercourse with

him in that belief, shall be punished with imprisonment of either description for a term

which may extend to ten years, and shall also be liable to fine.

Marrying Again During Lifetime of Husband or Wife (S .494)

Whoever, having a husband or wife living, marries in any case in which such marriage

is void by reason of its taking place during the life of such husband or wife, shall be

punished with imprisonment of either description for a term which may extend to seven

years, and shall also be liable to fine.

Exception

Section 494 does not extend to any person whose marriage with such husband or wife

has been declare void by a Court of competent jurisdiction, nor to any person who contracts

a marriage during the life of a former husband or wife, if such husband or wife, at the time

of the subsequent marriage, shall have been continually absent from such person for the

space of seven years, and shall not have been heard of by such person as being alive within

that time provided the person contracting such subsequent marriage shall, before such

marriage takes place, inform the person with whom such marriage is contracted of the real

state of facts so far as the same are within his or her knowledge.

Same Offence with Concealment of Former Marriage from Person with Whom Subsequent

Marriage is Contracted (S.495)

Whoever commits the offence defined in the last preceding Section having concealed

from the person with whom the subsequent marriage is contracted, the fact of the former

226

marriage, shall be punished with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.

Marriage Ceremony Fraudulently Gone Through Without Lawful Marriage (S .496)

Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of

being married, knowing that he is not thereby lawfully married, shall be punished with

imprisonment of either description for a term which may extend to seven years, and shall

also be liable to fine.

Adultery (S. 497)

Whoever has sexual intercourse with a person who is and whom he knows or has

reason to believe to be the wife of another man, without the consent or connivance of that

man, such sexual intercourse not amounting to the offence of rap, is guilty of the offence of

adultery, and shall be punished with imprisonment of either description for a term which

may extend to five years, or with fine, or with both. In such case the wife shall be

punishable as an abettor.

Distinction between Adultery and Bigamy

Adultery Bigamy

1. Adultery is defined in Section 1. Bigamy is defined under

497 of the Indian Penal Code. Section 494. Concealment

of the first marriage and preparing

for second marriage is explained in

S. 495

2. In adultery, there is sexual 2. The offence of bigamy consists in

intercourse with the wife of another marrying second spouse in the life

person without his consent or time of the wife or husband, when the

connivance of such person. first marriage is in existence.

3. If sexual intercourse is done 3. Consent of the wife or husband will

with wife with the consent of the not exempt from the offence. The

227

husband, it is not an offence. Spouse married second time shall

punishable even though he/she

obtained the consent letter or release

deed from the first spouse.

4. In adultery, wife is not punished, 4. In bigamy, either sex may be

even though she is also an active guilty.

and consenting participant of sexual

intercourse.

5. This section applies to all religious 5. Sections 494 and 495 do not

alike. apply to Muslim males.

6. Punishment: imprisonment for 5 6. Punishment: Imprisonment for

years or fine or with both. years and fine.

Distinction between Adultery and Rape

Adultery Rape

1. Adultery is defined in Section 497 1. Rape is defined and explained in

in Chapter XX (Offences relating to Sections 375 to 376D under a

Marriage.) separate Heading “Sexual offences”

in Chapter XVI (Offences affecting

Human body).

2. Adultery is lesser offence than 2. Rape is serious offence

than

adultery.

rape. It is very heinous,

barbarious.

228

3. The affected party is the husband. 3. the woman raped is

really affected

His family institution and dignity Party. She suffers physical

and mental

shall be destroyed by the third person . tensions and grievances.

She suffers

In the society, he is humiliated. He physical torture.

suffers mental agony. He does not

suffer physical torture.

4. Only married woman and third 4. Irrespective age, martial

status,

person take part in this offence. etc. any woman may

be subjected to

this offence.

5. She is the consenting party to the 5. The affected party does

not give

offence. She also takes active part her consent. Even if she has

given

in the sexual intercourse voluntarily her consent, it might be

due to the

and most probably with sexual desire, force, fear of death or

injury or due

love and affection. to undue influence, etc. No

woman likes to be raped.

6. There are no such type of heinous 6. Custodial Rape, gang

are the

229

nature incidents in adultery. most severe natured

offences.

7. Sexual intercourse with an unmarried 7. Rape can be committed

or any

woman, or with a widow, or a woman irrespective of age,

and

divorcee woman or with a woman her martial status whether

married

whose husband gives his consent, does or unmarried.

not constitute the offence of adultery.

8. Adultery cannot be committed by a 8. When a husband have

sex with

husband with his own wife. his own wife, while

she is in

separation from him, it is

said the

offence of rape is

committed.

9. In the case of adultery, the 9. Generally, the

proceedings are

proceedings are initiated by the initiated by the State

through the

husband. No other person, except police on behalf of

the victim.

husband, is entitled to initiate the The law presumes that the

offence

proceedings under S.497. of rape is not committed on

the

230

society.

10. Adultery is a good legal ground 10. Rape cannot be argued

as a

for the other spouse to obtain divorce, ground to obtain the

divorce or any

or any other matrimonial reliefs. other matrimonial reliefs.

11. Courts show sympathy on the 11. Courts show sympathy

aggrieved husband. victim woman.

12. Punishment: Punishment is lesser 12. Punishment: Punishment

than the offence of rape. Punishment is severe than adultery.

Punishment

five years or fine or with both. is seven years plus fine.

In custodial

rape, Punishment ranges

from ten

years to life with fine.

Enticing or Taking Away or Detaining with Criminal Intent a Married Woman (S .498)

Whoever takes or entices away any woman who is and whom he knows or has reason

to believe to be the wife of any other man, form that man, or from any person having the

care of her on behalf of that man, with intent that she may have illicit intercourse with any

person, or conceals or detains with that intent any such woman, shall be punished with

imprisonment of either description for a term which may extend to two years, or with fine,

or with both.

Husband or Relative of Husband of a Woman Subjecting Her to Cruelty (S .498A)

231

Whoever, being the husband or the relative of the husband of a woman, subjects such

woman to cruelty shall be punished with imprisonment for a term which may extend to

three years and shall also be liable to fine.

Explanation

For the purpose of this Section, “cruelty” means—

(a) Any wilful conduct which is of such a nature as is likely to drive the woman to

commit suicide or to cause grave injury or danger to life, limb or health whether mental or

physical of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or

any person related to her to meet any unlawful demand for any property or valuable

security or is on account of failure by her or any person related to her meet such demand.

In Vadde Rama Rao v. State of A.P

197

, the husband accompanied his deceased wife to

his in-laws to ask not only for the unpaid balance of the agreed dowry but also for

additional dowry. This was held to be sufficient to constitute an offence under this Section.

In Aravindan v. State of Kerala

198

, parties were living together as

husband and wife under an agreement of marriage. It was held that the expression

‘husband’ in S. 498 A covers such persons who enters into marital relationship and under

the colour of such proclaimed status of husband covers her in any manner, for any of the

purposes enumerated in S. 3

In John Idiculla v. State of Kerala

199

, court observed that a “second wife” of the

husband who married her during the subsistence of his earlier legal marriage can be treated

as “the relative of the husband”.

In State of Punjab v. Daljit Singh

200

, the court held that, demand for money after four

years of marriage for a specific purpose, no where related to marriage demand but causing

of harassment to deceased wife so much so that she was bound to end her life is sufficient

for conviction under S. 498 A.

197

1990 Cr.L.J. 1666 A.P.

198

2005 (3) KLT 157.

199

2005 (3) KLT 20.

200

1999 Cr. LJ 2723 (P & H).

232

TOPIC 10

DEFAMATION

Defamation (S. 499)

A person is liable for defamation if the following conditions are satisfied.

(1)He should have made or published any imputation concerning any person.

(2)The imputation should have made or published by words spoken or written, or by signs,

or by visible representations.

(3) He should have intended to harm the reputation of another person.

Defamation is a crime as well as a tort. A person's reputation is considered to be his

valuable asset. An injury to the reputation is made punishable under the Indian Penal Code.

In England the publication of a libel is punishable by section 5 of the Libel Act, 1843 for

imprisonment upto 1 year.

201

A man's opinion of himself cannot be called his reputation of a person is the opinion

of other persons about him. An injury to reputation is the most harmful of all injuries. The

law cannot allow it. All systems of jurisprudence have recognized reputation as one of the

four cardinal rights of man; the other three are rights relating to person, property and

liberty.

Explanation 1 for section 499 provides that it may amount to defamation to make

imputation concerning to a deceased person, if the imputation would harm the reputation of

that person if living, and is intended to be hurtful to the feelings of his family or other near

relatives.

Explanation 2 for section 499 provides that it may amount to defamation to make an

imputation concerning a company or an association or collection of persons as such.

Explanation 3 for section 499 provides that an imputation in the form of an alternative

or expressed ironically, may amount to defamation.

201

Smith and Hogan, Criminal Law (1988), pp. 822-825; Desmond v. Thorne (1982) 3 All E. R.

233

Explanation 4 for section 499 provides that no imputation is said to harm a person’s

reputation, unless that imputation directly or indirectly, in the estimation of others, lowers

the moral or intellectual character of that person, or lowers the character of that person in

respect of his caste or of his calling, or lowers the credit of that person, or causes it to be

believed that the body of that person is in a loathsome state, or in a state generally

considered as disgraceful.

Illustrations

(a) A says—“Z is an honest man; he never stole B’s watch” ; intending to cause it to be

believed that Z did steal B’s watch. This is defamation, unless it fall within one of the

exceptions.

(b) A is asked who stole B’s watch. A points to Z, intending to cause it to be believed that

Z stole B’s Watch. This is defamation unless it fall within one of the exceptions.

stole B’s watch. This is defamation, unless it fall within one of the exceptions.

First Exception

Imputation of Truth which Public Good Requires to be made or Published

It is not defamation to impute anything which is true concerning any person, if it is for

the public good that the imputation should be made or published. Whether or not it is for

the public good is a question of fact.

Second Exception

Public Conduct of Public Servants

It is not defamation to express in a good faith any opinion whatever respecting the

conduct of a public servant in the discharge of his public functions, or respecting his

character, so far as his character appears in that conduct, and no further.

Third Exception

Conduct of any Person Touching any Public Question

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It is not defamation to express in good faith any opinion whatever respecting to

conduct of any person touching any public question, and respecting his character, so far as

his character appears in that conduct, and no further.

Illustration

It is not defamation in A to express in good faith any opinion whatever respecting Z’s

conduct in petitioning Government on a public question, in signing a requisition for a

meeting on a public question, in presiding or attending a such meeting, in forming or

joining any society which invites the public support, in voting or canvassing for a particular

candidate for any situation in the efficient discharge of the duties of which the public is

interested.

Fourth Exception

Publication of Reports of Proceedings of Courts

It is not defamation to publish substantially true report of the proceedings of a Court

of Justice, or of the result of any such proceedings.

Explanation

A Justice of the Peace or other officer holding an inquiry in open Court preliminary to

a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception

Merits of Case Decided in Court or Conduct of Witnesses and others Concerned

It is not defamation to express in good faith any opinion whatever respecting the

merits of any case, civil or criminal, which has been decided by a Court of Justice, or

respecting the conduct of any person as a party, witness or agent, in any such case, or

respecting the character of such person, as far as his character appears in that conduct, and

no further.

Illustrations

(a) A says—“I think Z’s evidence on that trial is so contradictory that he must be stupid

or dishonest”. A is within this exception if he says this in good faith, inasmuch as the

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opinion which he express respects Z’s character as it appears in Z’s conduct as a witness,

and no further.

(b) But if A says—“I do not believe what Z asserted at that trial because I know him to be

a man without veracity” ; A is not within this exception, inasmuch as the opinion which he

express of Z’s character, is an opinion not founded on Z’s conduct as a witness.

Sixth Exception

Merits of Public Performance

It is not defamation to express in good faith any opinion respecting the merits of any

performance which its author has submitted to the judgment of the public, or respecting the

character of the author so far as his character appears in such performance, and no further.

Explanation

A performance may be submitted to the judgment of the public expressly or by acts on

the part of the author which imply such submission to the judgment of the public.

Illustrations

(a) A person who publishes a book submits that book to the judgment of the public.

(b) A person who makes a speech in public submits that speech to the judgment of the

public.

judgment of the public.

(d) A says of a book published by Z—“Z’s book is foolish; Z must be a weak man. Z’s

book is indecent; Z must be a man of impure mind”. A is within the exception, if he says

this in good faith, in as much as the opinion which he express of Z respects Z’s character

only so far as it appears in Z’s book, and no further.

(e) But if A says—“I am not surprised that Z’s book is foolish and indecent, for he is a

weak man and a libertine”. A is not within this exception, inasmuch as the opinion which

he expresses of Z’s character is an opinion not founded on Z’s book.

Seventh Exception

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Censure Passed in Good Faith by Person having Lawful Authority over Another

It is not defamation in a person having over another any authority, either conferred by

law or arising out of a lawful contract made with that other, to pass in good faith any

censure on the conduct of that other in matters to which such lawful authority relates.

Illustration

A judge censuring in good faith the conduct of a witness, or of an officer to the Court;

a head of a department censuring in good faith those who are under his orders; a parent

censuring in good faith a child in the presence of other children; a school-master, whose

authority is derived from a parent, censuring in good faith a pupil in the presence of other

pupils; a master censuring a servant in good faith for remissness in service; a banker

censuring in good faith the cashier of his bank for the conduct of such cashier as such

cashier—are within the exception.

Eight Exception

Accusation Preferred in Good Faith to Authorized Person

It is not defamation to prefer in good faith an accusation against any person to any of

those who have lawful authority over that person with respect to the subject-matter of

accusation.

Illustration

If A in good faith accuses Z before a Magistrate; if A in good faith complains of the

conduct of Z, a servant, to Z’s master; if A in good faith complains of the conduct of Z, a

child, to Z’s father—A is within this exception.

Ninth Exception

Imputation made in Good Faith by Person for Protection of his or other’s Interests

It is not defamation to make an imputation on the character of another provided that

the imputation is made in good faith for the protection of the interests of the person making

it, or of any other person, or for the public good.

Illustrations

237

(a) A, a shopkeeper, says to B, who manages his business-“Sell nothing to Z unless he

pays you ready money, for I have no opinion of his honesty”. A is within the exception, if

he has made this imputation on Z in good faith for the protection of his own interests.

(b) A, a Magistrate, in making a report of his own superior officer, casts an imputation on

the character of Z. Here, if the imputation is made in good faith, and for the public good, A

is within the exception.

Tenth Exception

Caution Intended for the Good of Person to whom Conveyed or for Public Good

It is not defamation to convey a caution, in good faith, to one person against another,

provided that such caution be intended for the good of the person to whom it is conveyed,

or of some person in whom that person is interested, or for the public good.

Punishment for Defamation (S. 500)

Simple imprisonment for a term which may extend to two years, or with fine, or with

both.

Printing or Engraving Matter Known to be Defamatory (S. 501)

Whoever prints or engraves any matter, knowing or having good reason to believe that

such matter is defamatory of any person, shall be punished with simple imprisonment for a

term which may extend to two years, or with fine, or with both.

In Abubacker v. Alexander

202

, it was held that the source of information is not a

consideration for prosecution for defamation.

Sale of Printed or Engraved Substance Containing Defamatory Matter (S .502)

Whoever sells or offers for sale any printed or engraved substance containing

defamatory matter, knowing that it contains such matter, shall be punished with simple

imprisonment for a term which may extend to two years, or with fine, or with both.

RECENT AMENDMENTS

202

1999 (3) KLT 738.

238

As per S. 44 of The Code of Criminal Procedure (Amendment) Act, 2005

203

the

following Amendments are to be brought about in the Indian Penal Code, 1860.

204

Knowingly carrying arms in any procession or organizing, or holding or taking part in

any mass drill or mass training with arms.

205

Such an offence in cognizable and non-

bailable.

S. 153AA states that whoever knowingly carries arms in any procession or organizes

or holds or takes part in any mass drill or mass training with arms in any public place in

contravention of any public notice or order issued or made u/S. 144A of the Cr. P. C. shall

be punished with imprisonment for a term which may extend to 6 months (six months) and

with fine which may extend to Rs. 2000 (two thousand rupees).

Arms in this section means articles of any description designed or adapted as weapons

for offence or defence and includes fire arms, sharp edged weapons, lathis, dandas and

sticks.

206

Non-appearance in response to a proclamation.

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Such an offence in cognizable and

non-bailable.

S. 174A provides that whoever fails to appear at the specified place and the specified

time as required by a proclamation published u/S 82 (1) of Cr. P. C., 1973 shall be punished

with imprisonment for a term which may extend to 3 years (three years) or with fine or with

both, and where a declaration has been made u/S. 82 (4) pronouncing him as a proclaimed

offender, he shall be punished with imprisonment for a term which may extend to 7 years

(seven years) and shall also be liable to fine.

203

(25 of 2005); w. e. f. 23.06.2006 [except 44(a)].

204

Act 45 of 1860.

205

Inserted by S. 44 (a).

206

Explanation to S. 153 AA of IPC.

207

Inserted by S. 44 (b); w. e. f. 23.06.2006

239

Bail jumping: Failure by person released on bail or bond to appear in Court.

208

Such

an offence in cognizable and non-bailable.

S. 229A provides that whoever, having been charged with an offence and released on

bail or on bond without sureties, fails without sufficient cause (the burden of proving which

shall lie upon him), to appear in Court in accordance with the terms of the bail or bond,

shall be punished with imprisonment of either description for a term which may extend to 1

year (one year), or with fine, or with both.

The punishment u/S. 229 is in addition to the punishment to which the offender would

be liable on a conviction for the offence with which he has been charged

209

and without

prejudice to the power of the Court to order forfeiture of the bond.

210

THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013

NEW OFFENCES

This new Act has expressly recognised certain acts as offences which were dealt under

related laws. These new offences like, acid attack, sexual harassment, voyeurism, stalking

have been incorporated into the Indian Penal Code:

Section

Offence

Punishment

Notes

326A

Acid attack

Imprisonment not less than ten

years but which may extend to

imprisonment for life and with

fine which shall be just and

reasonable to meet the medial

expenses and it shall be paid

Gender neutral

208

Inserted by S. 44 (c); w. e. f. 23.06.2006.

209

Explanation (a) to S. 229 A IPC.

210

Explanation (b) to S. 229 A IPC.

240

to the victim

326B

Attempt to

Acid attack

Imprisonment not less than

five years but which may

extend to seven years, and

shall also be liable to fine

Gender neutral

354A

Sexual

harassment

Rigorous imprisonment up to

five years, or with fine, or

with both in case of offence

described in clauses (i) & (ii)

Imprisonment up to one year,

or with fine, or with both in

other cases

Gender neutral

i. physical contact and

advances involving

unwelcome and explicit

sexual overtures; or

ii. a demand or request for

sexual favours; or

iii. making sexually coloured

remarks; or

iv. forcibly showing

pornography; or

v. any other unwelcome

physical, verbal or non-

verbal conduct of sexual

nature.

354B

Public

disrobing of

woman

Imprisonment not less than

three years but which may

extend to seven years and with

fine.

Assaults or uses criminal force

to any woman or abets such act

with the intention of disrobing

or compelling her to be naked in

any public place

354C

Voyeurism

In case of first conviction,

imprisonment not less than

Watching or capturing a woman

in “private act”, which includes

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one year, but which may

extend to three years, and shall

also be liable to fine, and be

punished on a second or

subsequent conviction, with

imprisonment of either

description for a term which

shall not be less than three

years, but which may extend

to seven years, and shall also

be liable to fine.

an act of watching carried out in

a place which, in the

circumstances, would

reasonably be expected to

provide privacy, and where the

victim's genitals, buttocks or

breasts are exposed or covered

only in underwear; or the victim

is using a lavatory; or the person

is doing a sexual act that is not

of a kind ordinarily done in

public.

354D

Stalking

Imprisonment not less than

one year but which may

extend to three years, and shall

also be liable to fine

Only for women. TO follow a

woman and contact, or attempt

to contact such woman to foster

personal interaction repeatedly

despite a clear indication of

disinterest by such woman; or

monitor the use by a woman of

the internet, email or any other

form of electronic

communication. There are

exceptions to this section which

include such act being in course

of preventing or detecting a

crime authorised by State or in

compliance of certain law or

was reasonable and justified.

Changes in law

242

Section 370 of Indian Penal Code (IPC) has been substituted with new sections, 370 and

370A which deals with trafficking of person for exploitation. If a person (a) recruits, (b)

transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by using threats,

or force, or coercion, or abduction, or fraud, or deception, or by abuse of power, or

inducement for exploitation including prostitution, slavery, forced organ removal, etc. will

be punished with imprisonment ranging from at least 7 years to imprisonment for the

remainder of that person’s natural life depending on the number or category of persons

trafficked. Employment of a trafficked person will attract penal provision as well.

The most important change that has been made is the change in definition of rape under

IPC. The word rape has been replaced with sexual assault in Section 375, and have added

penetrations other than penile penetration an offence. The definition is broadly worded and

gender neutral in some aspect, with acts like penetration of penis, or any object or any part

of body to any extent, into the vagina, mouth, urethra or anus of another person or making

another person do so, apply of mouth or touching private parts constitutes the offence of

sexual assault. The section has also clarified that penetration means "penetration to any

extent", and lack of physical resistance is immaterial for constituting an offence. Except in

certain aggravated situation the punishment will be imprisonment not less than seven years

but which may extend to imprisonment for life, and shall also be liable to fine. In

aggravated situations, punishment will be rigorous imprisonment for a term which shall not

be less than ten years but which may extend to imprisonment for life, and shall also be

liable to fine. A new section, 376A has been added which states that if a person committing

the offence of sexual assault, "inflicts an injury which causes the death of the person or

causes the person to be in a persistent vegetative state, shall be punished with rigorous

imprisonment for a term which shall not be less than twenty years, but which may extend to

imprisonment for life, which shall mean the remainder of that person’s natural life, or with

death." In case of "gang rape", persons involved regardless of their gender shall be

punished with rigorous imprisonment for a term which shall not be less than twenty years,

but which may extend to life and shall pay compensation to the victim which shall be

reasonable to meet the medical expenses and rehabilitation of the victim. The age of

consent in India has been increased to 18 years, which means any sexual activity

243

irrespective of presence of consent with a woman below the age of 18 will constitute

statutory rape.

Certain changes has been introduced in the CrPC and Evidence Act, like the recording of

statement of the victim, more friendly and easy, character of the victim is irrelevant,

presumption of no consent where sexual intercourse is proved and the victim states in the

court that there has been no consent, etc.

Criticisms

The Criminal Law (Amendment) Ordinance, 2013 has been strongly criticised by several

human rights and women's rights organisations for not including certain suggestions

recommended by the Verma Committee Report like, marital rape, reduction of age of

consent, amending Armed Forces (Special Powers) Act so that no sanction is needed for

prosecuting an armed force personnel accused of a crime against woman. The Government

of India, replied that it has not rejected the suggestions fully, but changes can be made after

proper discussion.

The Criminal Law (Amendment) Act, 2013

The Bill was passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21

March 2013, making certain changes from the provisions in the Ordinance. The Bill

received Presidential assent on 2 April 2013 and came into force from 3 April 2013. The

changes made in the Act incomparison with the Ordinance is listed as follows:

Offence

Changes

Acid attack

Fine shall be just and reasonable to meet medical expenses for treatment of

victim, while in the Ordinance it was fine up to Rupees 10 lakhs.

Sexual

harassment

"Clause (v) any other unwelcome physical, verbal or non-verbal conduct of

sexual nature" has been removed. Punishment for offence under clause (i)

and (ii) has been reduced from five years of imprisonment to three years.

The offence is no longer gender-neutral, only a man can commit the

offence on a woman.

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Voyeurism

The offence is no longer gender-neutral, only a man can commit the

offence on a woman.

Stalking

The offence is no longer gender-neutral, only a man can commit the

offence on a woman. The definition has been reworded and broken down

into clauses, The exclusion clause and the following sentence has been

removed "or watches or spies on a person in a manner that results in a fear

of violence or serious alarm or distress in the mind of such person, or

interferes with the mental peace of such person, commits the offence of

stalking". Punishment for the offence has been changed; A man

committing the offence of stalking would be liable for imprisonment up to

three years for the first offence, and shall also be liable to fine and for any

subsequent conviction would be liable for imprisonment up to five years

and with fine.

Trafficking

of person

"Prostitution" has been removed from the explanation clause

Rape

The word sexual assault has been replaced back to rape. The offence is no

longer gender-neutral, only a man can commit the offence on a woman.

The clause related to touching of private parts has been removed.