INDIAN PENAL CODE - Pritam Sir

Genesis of Criminal law and justice system:

It has been generally presumed that the earliest form of punishment for acts which could be called criminal was nothing but was a private revenge. Retaliation for an inflicted injury was the personal affair of the victims or their surviving kin and the community did not usually interfere. Given the said state of affairs, the notion of private revenge often led to blood feuds between families, clans or tribes. In fact, sometimes, the resulting loss of life and property would more often than not become so great that the communities began though, very slowly to restrict or altogether ban the bloody practice of private vengeance and started imposing trials and official penalties on the offenders. No doubt however, the feuds particularly, between powerful families of different communities still continued to be one of the main causes of war.

          During the initiation of the practice of imposing official trials and penalties on the offenders, it were usually the religious leaders who used to play the role of moderators of conflicts as well as that of the punishers of the offenders. As such, the threat of divine revenge was used against criminals especially at a time when the fear of Gods and supernatural forces was considerable among the people such that the magic and religion both were found to be the most effective socio-political tools. Acts that could be said to have adversely affected the well being of the community were considered affronts or offending to the gods to the effect that the natural calamities and disasters such as the plague, earthquakes etc were seen as nothing more than the expressions of divine anger. Under such circumstances, if the punishments meted out to the wrongdoers were found to be commensurate with the crime they had committed, it was thought to lessen the god’s fury. Probably, this was where the early origin of a primitive criminal law what came to be called as lex talionis i.e. (an eye for an eye and a tooth for a tooth) could be traced. In short, this could also be said to be the point at which the notions of crime and sin began to overlap with each other.

          At around the same time, it is believed to have started something called ‘state revenge’. It was thus believed that anti-personal or antisocial behaviour not only offended the gods, but also had its adverse effect on the political stability as well as the welfare of the social group or community. Thus, the state acted independently of the temple or church so called as while inflicting punishment on the wrongdoer. And it was this doctrine of state revenge that actually led to the origin of modern justice system where the victim has to seek a redress from the proper authorities of the state for the wrong that has been done to him or her.

          So far as India’s evolution of criminal law and justice system is concerned, it can be traced back to the Brahmanic India which had been chronicled as one of history’s most absolute theocracies. It was then were produced the laws or code of Manu generally, thought to date from between the thirteenth and ninth centuries BC. Besides mentioning various kinds of crimes and offences, the code did specify that part of judge’s functions wherein he was supposed to probe the heart of the accused and of the witnesses by way of studying their posture, mien i.e. appearance or expression including the changes in voice and expression. Thus, amazingly, the Manu code probably became the first ever code of law that could take account of judicial psychology interestingly, something of the analogous kind that can be found in our present day penal code (IPC) and the criminal courts.

The Indian Penal Code-1860:

 The substantive criminal law of India has been codified in the Indian penal code (IPC) of 1860. The IPC deals specifically with various offences and details about what acts will constitute an offence and what can afford an excuse or defence to a person being charged of an offence. The IPC must be distinguished from another parallel code of law called as criminal procedure code as the former is a substantive code of law which provides besides, detailing about what constitutes an offence and what are the exceptions including that all offences under the IPC or under any other Act shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the code. On the other hand, the criminal procedure code is a procedural code of law which prescribes inter-alia about the procedure to be followed for arresting and trying a person charged of an offence under the IPC.

            Therefore, every person in India charged of any offence described in the IPC shall be liable to punishment without any distinction of caste, rank or creed if the offence as mentioned in the code or under any Act has been committed by him in any part of India. Even a foreigner who commits an offence on Indian soil is also liable to be prosecuted and can be punished if found guilty in the same manner as an Indian do, yet the following exceptions may carefully be noted with regard to the following kind of persons who are excluded from the ambit of the code:

 Foreign sovereigns;

Ambassadors and members of the diplomatic corps enjoying immunity;

 Alien enemies;

• Foreign armies;
• Warships; and
• The president and the Governor under article 361 of the Constitution.

To have a fleeting idea about the listing of various kinds of offences in Penal code, they can be broadly studied under the following heads such as:

i)          Criminal conspiracy;

ii)         Offences against the state;

iii)        Offences relating to the Army, Navy and Air Force;

iv)        Offences against public tranquility;

v)         Offences by or relating to public servants;

vi)        Offences relating to elections;

vii)       False evidence and offences against public justice;

viii)      Offences relating to coins and Government stamps;

ix)        Offences relating to weights and measures;

x)         Offences affecting public health and safety, convenience, decency and morals;

xi)        Offences relating to religion;

xii)       Offences relating to and affecting the human body;

xiii)      Offences against property;

xiv)      Offences relating to breach of contract of service;

xv)       Offences relating to marriage;

xvi)      Cruelty by husband or relatives of husband;

xvii)     Defamation;

xviii)    Criminal intimidation, insult and annoyance etc…

          Notwithstanding these, the Parliament has power to add and alter or amend any of these mentioned offences and can even create new offences under the IPC or any other Act. In the exercise of such powers, the Parliament has created many offences under the various Acts such as the offences under the foreign exchange regulation Act, the Income Tax Act, the Customs Act, the Central Excise and Salt Act, the Food Adulteration Act, the Police Act and the Companies Act etc…

          To be noted in the context of the creation of a new offence by the Parliament that no one can be penalized for such an offence if it was not an offence when it was committed.

          Over and above this, the IPC also provides for the kinds of punishments which the various courts can award on an accused or so called convict such as:

• Death;
• Imprisonment for various periods up to life imprisonment including two kinds of imprisonments called as rigorous that accompanies hard labour or simple imprisonment.
• Forfeiture of property; and
• Fines.
• A combination of any of the above punishments depending upon the offence committed say for example; there can be imprisonment with fine or for that matter, different sentences of imprisonment for various offences to run concurrently or subsequently.

What is a Crime?

Salmond, one of the celebrated jurists of the time maintains that a crime is an act deemed by law to be harmful to society in general, even though its immediate victim is an individual.

            A crime thus can be said to be an act of commission or omission, contrary to law, tending to prejudice of the community, for which punishment may be inflicted as the result of judicial proceedings taken in the name of the State.

Thus, it is clear that a crime is what the State has through an enactment of the Legislature declared as punishable. In other words, there is no crime apart from what the Legislatures have laid down in this regard. It is to be noted that an act while not falling within the purview of crimes defined by the Legislature may still be a moral crime.

As crimes are acts declared by the Legislatures at a given time to be punishable, it follows that there can be no hard and fast rule in respect of the law of crimes.

In a fast changing world, the ideas and ideals of society may change and today’s idea of crime may not necessarily correspond with that of a later age. Further different societies and different countries may have different ideas about criminality. What is criminal in one particular country may not be so in another. Thus crime is a relative concept and an act is a crime if the State says so and not otherwise. For example adultery may be a crime under the Indian Penal Code but may not be so under the legal system of another country.

Further acts or omissions, however immoral they may be, are not criminal unless they contravene the provisions of the Indian Penal Code.

Noted further that IPC does not define the term crime and simply says that the word offence or crime denotes a thing made punishable by this code or under any special or local law. While a ‘special law’ is a law applicable to a particular subject for example, Excise Act, Customs Act etc.

And a ‘local law’ is a law applicable to a particular part of India.

What is criminal Law? Criminal law is the body of law that relates to crime.  It may be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey these laws. Criminal law differs from civil law, whose emphasis is more on dispute resolution than to punish someone.

GENERAL PRINCIPLES OF CRIMINAL LIABILITY (MENS REA)

Mens rea is a Latin phrase, meaning "guilty mind". This is the mental element of the crime. A guilty mind means an intention to commit some wrongful act. Noted importantly that intention under criminal law is separate from a person's motive.

When a person commits a wrong he is said to be liable for it. Criminal liability arises when a person commits an act which is criminal in nature. The person committing the criminal act is liable to be punished by the State through the machinery of criminal justice (as for instances imprisonment, fine etc). In the case of civil wrongs, the wrong-doer is liable to pay damages to the aggrieved party, or for specific performance etc.

Thus while the object of civil proceedings is to enforce rights, the object of criminal proceedings is to punish wrongs. Civil liability can be said to be remedial while criminal liability is mainly penal.

However, while punishment is a predominant feature in criminal proceedings, it is not always the case, just as punishment is not always absent in civil proceedings. For example a juvenile offender may be let off with a warning. Likewise, a person can be imprisoned if he disobeys an injunction of the Court.

What is required to constitute a Crime or a criminal Act? Criminal or penal liability is generally said to arise when following two conditions are fulfilled:

(a)        Guilty Mind (mens rea)

(b)        Criminal Act (actus reus)

Let’s understand the meaning and implications of each of these two terms first of all so as to have a better understanding of criminal law:          

Guilty Mind (Mens rea): A cardinal principle of criminal law is contained in the Latin maxim ‘Actus non facit reum, nisi mens sit rea’. It means that there can be no crime without a guilty mind. In other words, it implies that the criminal act must be accompanied by a guilty mind and one cannot do a criminal act without physically moving to do something. Thus, the two components of a crime are the physical act or actus reus, and the guilty mind or mens rea. Actus-reus is again a Latin expression for a guilty Act. To this general rule however, there are exceptions for example, in cases of strict liability under different laws enacted by the Legislature which we will discuss in the subsequent pages. Nevertheless, from the viewpoint of mens rea, wrongs may be classified as under:

(a)        Intentional wrongs – where mens rea is equated with intention or purpose

(b)        Wrongs caused by negligence – in such cases culpae i.e. the negligent act constitutes mens rea.

(c)        Wrongs of strict liability – where men rea is not necessary.

What constitutes a wrongful Act?

While the word ‘wrongful’ is as simple as doing something which is against the law or not permissible by law. Whereas, the word ‘act’ means a motion or motions of the body consequent upon the determination of the will, coupled with the more immediate consequences of such a motion or motions. Act does include under the IPC an omission i.e., intentional non-action which to be punishable must be illegal as well.

An act thus, signifies an intention of the person concerned when it (act performed) is the outcome of the determination of the person’s will and is what that was foreseen and desired by the person. An act therefore, does not amount to be an intentional one when it is not the result of the determination of the will and is not foreseen or desired. Accordingly, as stated above, an act thus comprises following three factors, viz.

(a)        Origin in some mental or bodily activity

(b)        Its circumstances

(c)        Its consequences

For example, in the case of an act involving shooting of a person all these factors are involved. There is bodily activity in shooting. A person is in range of the rifle. The consequence of pulling the trigger is seen in the discharge of the bullet and its entry into the victim’s body.

An act includes illegal omissions also. Thus C, a stranger, sees D struggling to keep afloat in a lake, does not interfere and D is drowned. Here C is not liable for D’s death, as the law did not cast any duty on C, to go to D’s rescue. However, if an omission is per se an offence under the Penal Code, then the person who abstains from doing the thing, which under law he should have done, is liable for the consequences.

            While circumstances and consequences are factors which are part and parcel of a wrongful act, they may be relevant or irrelevant depending on the nature of the act and the magnitude of the liability involved. Thus in the case of the offence of theft, the time of the day when it is committed is irrelevant, whereas in the case of the offence of house-breaking, the hour during which it is committed becomes relevant in assessing the magnitude of the liability of the offender. Section 456 of the Indian Penal Code considers house-breaking by night as an aggravated offence, whereas house-breaking by day is treated as a lesser offence.

            Criminal liability is established by the proof of some act, which the law considers to be dangerous in its tendency and proof of damage, which is generally unnecessary unlike in case of civil liability.

The Nature of Intention: The second aspect of criminal liability is that the person who commits a criminal act must have a guilty mind. Mens rea is a technical term and denotes a blameworthy mental condition and could be constituted by intention, negligence or sometimes even knowledge which may indicate intention.

            Intention is the purpose or design with which an act is done. It implies previous knowledge and a desire to commit the act. Intention is different from expectation. A person may expect to miss the victim he is shooting and yet he intends to shoot him if he desires so. Similarly expectation does not amount to intention. For example a doctor may expect that an operation might result in the patient’s death but he does not intend the patient’s death. While intention can be deduced from conduct it is never conclusive. Further where the statute defines a crime as including a particular intention or state of mind i.e., dishonestly, fraudulently etc., the onus of proving the existence of such guilty intention is on the prosecution.

            Knowledge and Intention: The difference between knowledge and intention is that in the case of intention, the person desires the consequences while this may not be so in the case of knowledge. However, where knowledge is such that any person endowed with plain common sense, could envisage the result to be the natural consequence of the wrongful act committed, the law will construe such knowledge as implying intention.

            Motive: While intention can be termed as the immediate mental condition of a person committing a criminal act, motive may be construed as the ulterior desire which gives rise to the immediate mental condition. Thus if a person kills an aged relative in order to inherit his wealth, the immediate mental condition, that is killing the aged relative is called intention, while the ulterior desire to inherit his wealth is called the motive. Thus where an act is done intentionally the motive is revealed when the question ‘why the act was done’ is answered.

The relevance of motive and intention in criminal law: In criminal law the general rule is that motive is irrelevant and only intention is relevant. The law takes into account only the intention and ignores the motive. A person may have a noble motive in doing an act but if he intentionally causes wrongful loss, his crime is complete and the motive is irrelevant. To understand the point and delicate difference between intention & motive, consider the following historical case:

Thus, from the above case, we can conclude that where the intention is criminal it cannot be justified by a good or a noble motive.

Do we have some offences where motive also become relevant?

Yes, we do especially, in the offences of the following kind:

(a)        Criminal attempts: A criminal attempt may be defined as an intentional act, which a person does towards the commission of an offence, but which fails in its object through circumstances independent of the volition of that person. Thus, an attempt is a frustrated wrong and in such cases where the act has not been committed, motive becomes relevant to assess the liability of the wrong-deer. In such cases, it is the motive which makes the act wrongful though, the act in itself may not be wrongful.       

(b)        Motive also becomes relevant in cases where a particular intent forms a part of the definition of a criminal offence. Examples in this regard are house-trespassing in order to commit an offence punishable with death under the IPC and the offence of forgery.

(c)        In civil liability in case of defamation and malicious prosecution, motive assumes relevance.

 

How does the commission of a crime accomplished?

Stages in the Commission of a Crime: The following four stages are involved in the commission of a crime:

(i)         Intention to commit the crime

(ii)        Preparation for its commission

(iii)       Attempt to commit it

(iv)       Commission of the crime in actual

(i)         Intention: Intention is the determination of the will to act in a particular manner. Mere intention is not punishable in Criminal Law. ‘Even the devil knoweth not the thought of a man’…

            However, an expression of intention is sufficiently criminal in the case of criminal intimidation, annoyance and insult and is a complete offence in the case of sedition.

            For example A for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn down B’s house. A is guilty of criminal intimidation in as much as the expression of intention is sufficiently criminal.

(ii)        Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. Preparations are normally not punishable but there are offences under the IPC, the heinousness of which has led the law to punish even their preparation.

            Some of such offences are:

             Section 122 preparation with intention of waging war against the Government of India;

             Section 126 preparation to commit depredation on the territories of any power at peace with Government of India and

             Section 399 preparation to commit dacoity.

            However, if a person has not gone beyond the stage of preparation, repents and gives up the intention of committing the crime, then he is not punishable under the Indian Penal Code. 

(iii)       Attempt: An attempt is the direct movement towards the commission of the offence after the preparation has been made. An attempt to commit an offence must lead inevitably to the commission of the offence unless, something which the doer of the act neither foresaw nor intended, happens to prevent it.

            Example: A makes an attempt to steal some jewels, by breaking open a box, and finds that after opening the box, there are no jewels in it. He has done an act towards commission of theft and is therefore guilty of attempt.

(iv)       Commission of the Crime: If the attempt to commit the offence is successful then the crime is committed. Where it is not successful, Section 511 becomes applicable. Once the crime is committed, the consequences of the crime come into play.

 

Difference between Preparation and Attempt: The difference between preparation and attempt is rather fine and depends on the facts of each individual case.

Example: A intends to kill B and with this motive, he purchases poison in order to mix it with B’s food. Up to this stage, A’s act is mere preparation. The moment A mixes poison in B’s food and puts it before B among his dishes, he has committed an ‘attempt’.

Is mens rea always a necessary condition to constitute a crime?

No, there are exceptions to this general rule of criminal law which are being discussed below:

Exceptions to the requirement of mens rea:

In one word, these may be classified as wrongs of “strict liability”, where mens rea is not necessary such as:

1.         Where a statute imposes a liability: Several modern statutes passed in the interests of public safety, and social welfare, impose such strict liability. Examples of such acts are the Food and Drugs Act, Licensing Act, The Motor Vehicles Act, Road Traffic Act, The Essential Commodities Act, etc. The doctrine of strict liability excludes the principle of mens rea, on the ground that such regulations are enacted to preserve and protect the social and economic interest of the community – which requires strict adherences to such laws.

2.         When it is difficult to prove mens rea: This occurs in case of offences punishable with petty fines.

3.         In cases of public nuisance: Here again the justification is the interest of public safety. Thus, when a person causes public nuisance he will be punishable whether the act is accompanied by a guilty mind or not.

4.         In cases which are criminal in form but are in fact, only a summary mode of enforcing civil right.

5.         In cases of mistake of law: The rule is expressed by the maxim Ignorantia juris non excusat i.e. ignorance of the law is no excuse. Thu, where a person commits an act prohibited by law without having the knowledge of the law, the fact that he was ignorant of the law is no defence and he would be liable for the act.

 

Does ‘vicarious liability’ arise under criminal law?

Before do we answer this question, first of all we need to understand-

What is vicarious Liability? Vicarious liability is the liability which one incurs for the acts of another. Examples of such liability are the liability of a master for the acts of his servant, or the liability of a principal for the acts of his agents. The master’s liability for the acts of his servant or the principal’s liability for the acts of his agents is founded on the following principles of law:

(a)        The acts done by the servant are done on the basis of the master’s express or implied authority.

(b)        Difficulty in proving whether the master gave his authority or not.

(c)        Inability of the servant to bear the pecuniary liability arising out of a civil action.

Thus, if the master is not held responsible he could evade responsibility by passing the liability on to his servant from whom no pecuniary recovery could be made.

While the doctrine of vicarious liability is applicable in civil law it has as a general rule, no application in criminal law just because; the cardinal principle underlying criminal law is that each person is responsible for his own act.

Therefore, a person to be criminally liable should not only have committed an act but must also have a guilty mind. Applying this proposition, it can be concluded that the guilty mind of the servant cannot be attributed to the master.

But to this rule that the doctrine of vicarious liability does not apply to criminal law, there are two exceptions which are laid down in Section 154 and Section 155 of the IPC.

In fact, the combined affect of both these sections is to portray the fact that there are certain cases in which the law casts a duty on the owner of the property to manage it in such a manner as not to cause injury to any other person or the public and if such duty has been violated, the law certainly treats such a breach as criminally punishable.

Therefore, in such cases, the owner cannot escape liability under criminal law by just delegating the management of his property to someone else say, to one of his managers or agent who commits a breach of such a legal duty. Let’s see in brief as what the law says in this regard:

Section 154: Owner or occupier of a land on which an unlawful assembly is held.

This section imposes liabilities on the owner or occupier of a land upon which an unlawful assembly is held or a riot takes place. It creates a duty on such owner/occupier of land to notify the matter to the principal officer at the nearest police station, to use all lawful means to prevent and disperse or suppose the riot. It is very comprehensive and extends not only to the principal but also to his manager or agent and covers all contingencies present, past and future.

Section 155: Liability of person for whose benefit riot is committed: Whenever a riot is committed for the benefit or on behalf of any person who is the owner or occupier of any land respecting which such riot takes place or who claims any interest in such land, or is the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit there from such person shall be punishable with fine, if he or his agent or manager, having reasons to believe that such riot was likely to be committed or that the unlawful assembly by which such riot was committed was likely to be held, shall not respectively use all lawful means in his or their power to prevent such assembly or riot from taking place and for suppressing and dispersing the same.

Outside these two sections however, another important exception to the above rule of vicarious liability does exist under the licensing Acts.

            The underlying principle in such cases is that licenses are granted to persons on the basis of their integrity and character, and if the control and management of the licensed business was delegated to some other person and thereby the license holder escapes the liability for the acts of the delegate - the purpose of the law is defeated. The master of a business firm can be held liable for the acts of his servant in violation of the provision of the law.

           

How to measure the quantum of Criminal Liability?

Generally the following three elements are taken into account in determining the measure of criminal liability or the appropriate measure of punishment to be awarded. These are:

1.         The motive behind the crime: The main object of punishment is to deter the probable wrongdoer by holding out the threat of punishment thereby neutralizing his natural motive. The stronger the motive, the greater the threat should be, and hence the punishment should be severe.

2.         The magnitude of the offence: The greater the magnitude of the crime the greater the punishment. Two reasons given by Salmond for taking into account the magnitude of the offence are detailed above.

(a)        The greater the motive of any offence, the great is the punishment, which it is profitable to inflict with the hope of preventing it.

(b)        The fear of greater punishment might prevent a person from committing the offence of greater magnitude where alternatives are available to commit an offence of small or of greater magnitude.

3.         Character of the offender: The worse the character of the offender, the greater the punishment. In the case of habitual offenders and hardened criminals, the punishment would naturally be more severe than in the case of first offenders and juvenile offenders, where the punishments would be extremely lenient.

 

How does a crime redressed? - By inflicting PUNISHMENTS on the offender:

Theory of Punishment: The dictionary meaning of punishment is a penalty inflicted on an offender through judicial procedure. Punishment is inflicted when one deviates from certain social norms formulated for the purpose of maintaining peace, law and order. The punishment for such deviations range from a token fine to a death penalty. If the sole purpose of punishment is to cause pain to the offender it serves little purpose. On the other hand, if the purpose of the punishment is to make the offender realize the gravity of his wrong and instill in him a desire to atone and make amends for it, the punishment inflicted may be said to have achieved its object. The object or purpose of punishment cannot be attributed to one reason only and thus over the years, many theories of punishment have come to the fore. The well-known theories are:

(i)         The Deterrent theory

(ii)        The Preventive theory

(iii)       The Retributive theory

(iv)       The Reformatory theory

(i)         The Deterrent theory: A punishment is primarily deterrent in nature when its object is to take crime an ill-bargain to the offender by the infliction of an exemplary punishment, thereby acting as a deterrent to the person concerned as well as to the world at large. The advocates of capital punishment rely on this theory in support of their contention.  

(ii)        The Preventive theory: - The propounders of this theory hold that the object of punishment is to prevent the offences, by permanent or temporary disablement in the form of a death sentence or imprisonment for a certain number of years respectively. The extreme penalty i.e., death ensures that once and for all, the offender will be prevented from repeating the crime. Imprisonment disables or prevents the offender from committing the crime for a limited period. The period of imprisonment could be utilized to reform and re-educate the offender so that he could not commit a crime again.

            Where does the difference between Deterrent and Preventive theory lie?  While broadly speaking there seems to be no real difference between the two theories, in the case of the deterrent theory, the object is to show the offender and the world at large that crime does not pay, while the main purpose of the preventive theory is to disable by means of death or imprisonment, the offender himself so as to ensure that he does not repeat the crime.

(iii)       The Retributive theory: The retributive theory of punishment has its roots in the retributive indignation of the people at large which flares up and comes to the fore whenever a crime or injustice is committed. According to this theory which can be said to be based on the principle of ‘an eye for an eye’ and ‘a tooth for a tooth’, any rational system of administration of justice must attempt to satisfy this emotion.

            The system of private revenge has to some extent been suppressed and the victim takes recourse to law expecting to take revenge on the offender through the system of administration of justice. However, if the criminal is treated very leniently, the spirit of vengeance or retributive indignation is bound to come to the surface again and find its satisfaction through private vengeance. The retributive theory however ignores the causes of the crime and the fact that in many cases innocent persons are falsely implicated. Further, whereas other theories regard punishment as a means to an end, the retributive theory looks on it as an end in itself.

(iv)       The Reformatory theory: According to this theory “crime is like a disease” that ‘you cannot cure by killing’. Thus this theory propounds that the object of punishment should be reformatory, that while the crime should be despised, the offender should not be hated. The object of this theory is to convert the criminal into a civilized man by providing a healthy atmosphere in jail facilitating the criminal's reformation and re-education. To the propounders of this theory, execution, solitary confinement, etc., are relics of the past and enemies of reformation. The aim of the theory is to effect a change in the character of the prisoner so as to make him a useful member of the society for which he requires a healthy atmosphere and proper facilities in jails.

Lamenting on the atrocities and filthy living conditions, prevailing in Delhi's Tihar Jail in the case of Sunil Batra v Delhi Administration 1980, Justice Krishna Iyer observed: 'The rule of law meets its Waterloo when the State's minions become law breakers, and so the Court as a Sentinel of Justice and the Voice of the Constitution, runs down the violators with its writ and serves compliance with human rights even behind iron bars and by prison warders', While reformation is an important element, there are certain limitations in the sense that it may serve better chances of being successful in the case of juvenile offenders and or first time offenders rather than hardened criminals in whom crime is an ineradicable instinct. It is also true that criminals are mentally diseased and abnormal human beings. Thus, if all murderers were to be given lenient and reformative treatment, it would have an adverse impact on the public at large. Thus, while the theory is practicable in the case of the very young, first offenders, and the mentally retarded offenders, in all other cases however, some deterrent element is necessary.

In conclusion it can be said that the administration of criminal justice cannot have as its sole purpose any one of the theories of punishment mentioned above. For a Penal Code to be effective there must be a judicious blend of the various theories of punishment, as no single theory of punishment can be a complete solution by itself.

 

KINDS of Punishments under the Indian Penal Code-(Sec.53):

The Punishments to which offenders are liable under the IPC are:

(i)         Death

(ii)        Imprisonment for life

(iii)       Imprisonment which can be:

(a) Rigorous with hard labour

(b) Simple imprisonment

iv) Forfeiture of property

(v)        Fine

Death: The death sentence is the most deterrent punishment and based on the principle of a 'Life for a Life'. The punishment of death may be awarded in the following         cases:

(i)         Waging war against the Government of India (Sec.121)

(ii)        Abetting mutiny and is actually being committed (Sec.132)

(iii)       Giving or fabricating false evidence upon which an innocent person suffers death (Seed 94)

(iv)       Murder (Sec.302)

(v)        Abetment of suicide of a minor or insane person or an intoxicated person

(vi)       Dacoity accompanied with murder (Sec.369)

(vii)      Attempt to murder by a person under a sentence of imprisonment for life and if hurt is caused in such an attempt (Sec.307)

It may be noted that the Court is not bound to award the death sentence in all or any of the above cases, but it may do so.

Death or Capital Punishment: The purpose of capital punishment is twofold:

Firstly, by putting the offender to death, fear is instilled in the minds of the world at large such that it operates as an ominous warning to the public of the fate that awaits them in case they are to contemplate a similar offence.

Secondly, if the offender is an incorrigible or incurable offender, putting him to death prevents repetition of the crime as it would be in the interest of the community to ensure that he is not to be set free again. There have been many arguments for and against capital punishment.

Voices against and in favor of Capital punishment:

While there have been mixed arguments on this count from across the world.

The advocates who favor capital punishment argue that there are some hardened and incorrigible criminals in whom crime is an ineradicable instinct and who can be immensely dangerous to the society. Such dangerous elements should be removed altogether if the interests of the community are to be served better by inflicting death penalty on them. Similarly, they also argue that the punishment by the State operates as a substitute for private revenge. Thus, if the murderer is not punished with death, the retributive indignation of the relatives or kith & kins of the deceased is bound to rise to the surface, which could set off a chain of murders. So long as the emotion of retributive vengeance remains, capital punishment is a necessary evil.

On the other hand, the people who are against capital punishment argue that it could not have had the deterrent effect as the crimes are often committed by normal persons placed under abnormal circumstances. Furthermore, it is not even certain in some cases that a murderer would not repeat the murder again. At the same time, — no thinking person can ever claim that our law of evidence and the law of procedure are foolproof and always lead inevitably to the truth. Judicial errors do occur, and once the death penalty is awarded and the person is hanged, it obviously cannot be revoked. It is to be noted in this connection that there have been instances of execution of innocent men, and the true murderer being subsequently caught. Thus, it would be better to save nine murderers from the death penalty rather than let one innocent person to be executed.    For example, in U.S.A. crimes have increased in the States where capital punishment has been retained, while crimes have decreased in the States where it has been abolished. In England too, capital punishment has been recently abolished and the results of this experiment are said to be encouraging.

But the most rationale approach on this issue seems to be that the capital punishment being neither effective nor just should be abolished in a single stroke of the pen.

What is the present position in India so far as capital punishment is concerned?

The Supreme Court in Harnam v State of U.P. (1976) has observed:

The legislative history in regard to the criminal punishment shows that there has been significant change in thinking and approach since India became free. Prior to the amendment of Sec. 367(5) of the Criminal Procedure Code in 1955, the normal rule was to impose sentence of death on a person convicted for murder, and if a lesser sentence was to be imposed, the Court was required to record reasons in writing.

 But by Act 26 of 1955, the provision in Sec.367(5) was omitted with the result that the Court became free to award either death sentence or life imprisonment and henceforth, neither death sentence would remain as a kind of some written rule nor life imprisonment as an exception. Then again a further progress was made by Sec.353 (3) of the Criminal Procedure Code 1973. That Section provides that when the conviction is for an offence punishable with death or in the alternative, with imprisonment for life or imprisonment for a certain term of years, the judgment shall state the reasons for the sentence awarded and in the case of sentence of death, the special reasons for awarding such sentence'.

Later in Bachan Singh v State of Punjab (1980), the Supreme Court considered the question as to whether the death penalty prescribed for some offences under the Indian Penal Code was constitutionally valid. The Supreme Court held that the death penalty is constitutionally valid, and does not constitute an 'Unreasonable, cruel or unusual punishment'. The Supreme Court pointed out that the death penalty is to be imposed only for 'Special reasons' and in the 'rarest of rare cases'. Hence such provisions cannot be said to be violative of Arts.14, 19 and 21 of the Constitution.

In Machhi Singh v State of Punjab-1983, the Apex court further emphasized that the death penalty need not be inflicted except in the gravest of cases of extreme culpability and that life imprisonment is the rule and death sentence is an exception. In short, the Court ruled that death punishment is to be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and to impose life imprisonment in such a case or cases appears to be unconscientious.

In the same case, the Supreme Court attempted to formulate some broad guidelines for determining the rarest of rare cases in which the murderers shall inevitably be awarded the death penalty rather than life imprisonment. The Supreme Court provided that in such cases, the judges must ask themselves two questions in order to decide that whether a particular murder case before them really falls within the category of the rarest of rare cases such as:

i) Whether there is something uncommon about the crime which renders life imprisonment sentence an inadequate penalty and thus calls for a death sentence?

ii) Whether the circumstances of the crime are such that there is no alternative but to award the death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offender?

By considering and asking themselves above two questions, the judges must draw up a balance sheet of aggravating and mitigating circumstances.

Finally, in Allauddin Mian v state of Bihar-1989, the Apex Court again reiterated the proposition that only in those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community, would it be permissible to award the death sentence. For example,

In very brutal cases involving wife-burning tragedies, the Supreme Court has taken a strict and stern view of 'dowry deaths' and 'wife-burning tragedies' and has refused to commute death sentences imposed on. such `murderers'.

Nevertheless, in India there is one case in which sentence of death is compulsory under the provisions of IPC. Sec. 303 IPC provides that if a murder is committed by a person, who is already undergoing a sentence of life imprisonment, he would have to be punished with death. However, Sec.303 was struck down by the Supreme Court in Mithu v State of Punjab (1983) as being unconstitutional i.e., violative of Arts. 14 and 21. As a result of this decision even in the case of a life convict committing murder, judicial discretion is to be exercised by the Court. While declaring, section 303 unconstitutional, the Apex Court sought to make out a distinction between section 302 and 303 of IPC. According to it, while section 302 provides for the death sentence as an alternative, the section 303 prescribes a mandatory death sentence. As such there is no rational basis for classifying persons who commit murders while under life imprisonment as distinguished from others who commit murders while not under life imprisonment so as to make death sentence mandatory in the former case and optional with regard to the latter. Hence, this classification is purely unreasonable and bears no nexus with the object that is being sought to be achieved by the statute i.e. IPC.

In State of UP vs. M.K. Anthony 1985, the accused killed his ailing wife as he could not provide the money for her operation. He also killed his two children, as there would be no one to care for them after the mother. However, the crime was committed out of poverty, and not for lust, vengeance or gain. In the circumstances the Supreme Court held that life imprisonment, and not capital punishment was the appropriate sentence. On the other side,

More recently, in Surja Ram v state of Rajasthan-1997, the Supreme Court also refused to commute the death sentence of the convict keeping in view the extremely barbariousness of the crime. In this case, the appellant killed his real brother, his two minor sons, aunt and had nearly killed his brother’s wife and daughter while asleep. There was no provocation proved for this ghastly act.  

See.60. Imprisonment may be simple, or rigorous, or partly rigorous and partly simple.

(i)         While the maximum period of imprisonment that can be awarded for an offence is 14 years, the lowest that can be awarded is one day's simple imprisonment.

(ii)        In two cases viz., Secs.397 and 398, the minimum imprisonment is laid down, ie. 7 years for causing hurt or grievous hurt in the course of committing robbery or dacoity.

(iii)       Rigorous imprisonment is mandatory in two cases:

(a)        Giving or fabricating false evidence with intent to procure conviction of a capital offence, Sec.194.

(b)        House trespass to commit an offence punishable with death, Sec.449.

(iv)       There are some offences which are punishable with simple imprisonment only such as:

(a) Refusing to take oath, Sec.178,

(b) Disobedience to an order duly promulgated by a Public Servant, Sec.188.

(c) Wrongful restraint, Sec.341.

(d) Defamation, Sec.500.

(e) Misconduct by a drunken person, Sec.510.

Imprisonment, if properly utilized, may serve all purposes underlying the various theories of punishment. It may be deterrent by demonstrating to the world at large that crime does not pay; it may be preventive in the sense of disabling the offender from repeating the crime at least, for some time, and it might if properly utilized help in reforming and re-educating the offender.

Solitary confinement: Sec.73: Whenever any person is convicted of an offence for which under the Code the Court has power to sentence him to rigorous imprisonment, the Court may by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding 3 months on the whole, according to the following scale, ie.

(i)         a time not exceeding one month, if the term of imprisonment shall not exceed 6 months.

(ii)        a time not exceeding 2 months if the term of imprisonment shall exceed 6 months and shall not exceed one year.

(iii)       a time not exceeding 3 months if the term of imprisonment shall exceed one year.

Limit of Solitary Confinement: Sec.74 provides that such confinement should not exceed 14 days at a time with intervals of at least 14 days between any two periods of solitary confinement. If however the substantive sentence exceeds three months imprisonment, solitary confinement cannot exceed 7 days a month, with an interval of at least 7 days between any two periods of such confinement. Other important points to be noted in this regard are:

(i)         Where imprisonment is not part of the substantive sentence, solitary confinement cannot be awarded. So also this punishment cannot be imposed as a part of imprisonment in lieu of fine.

(ii)        As the Court can impose solitary confinement for any portion or portions of the substantive sentence, an imposition of solitary confinement for the whole term of imprisonment (even if such whole term is 14 days) is illegal.

(iii)       Solitary confinement can be awarded even if the case is tried summarily.

(iv)       Solitary confinement is a separate punishment. A person who is awarded a death sentence cannot be kept in solitary confinement.

In India, Solitary confinement, which denotes seclusion of the prisoner both from the sight of and communication with other prisoners, is awarded in rare cases. It is reserved for exceptional cases of inhuman brutality or extreme atrocity.

Forfeiture of property: Forfeiture of property as a fourth category of punishment has been now abolished except in the case of offences under Secs.126, 127 and 169.

Sec.126. Committing depredation on territories of a Power at peace with the Government of India attracts the punishment of forfeiture of property used or intended to be used in committing such depredation or required for committing such depredation.

Sec.127. Whoever knowingly receives property taken as above-mentioned or by waging war against an Asiatic Power at peace with the State forfeits such property.

Sec.169. A public servant who unlawfully purchases property, which by virtue of his office he is legally, prohibited from purchasing, forfeits such property.

Imprisonment for life: A sentence for imprisonment for life means a sentence for the entire life of the prisoner unless; the appropriate Government chooses to exercise its discretion to remit part or whole of the sentence. The appropriate Government cannot be compelled to exercise this discretion. An accused can be legally kept in prison for life.

Amount of Fine — Sec.63: Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited but shall not be excessive.

In such cases, the fine should be fixed, looking at the nature of offence, circumstances of the case and the accused.

Sec.64: Sentence of imprisonment for non-payment of fine

(i)         In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine with or without imprisonment, and

(ii)        In every case of an offence punishable with imprisonment or fine, or with fine alone in which the offender is sentenced to a fine; the Court may direct that in default of payment of fine, the offender shall suffer imprisonment for a certain term over and above any imprisonment to which he may have been sentenced, or to which he may be liable under a commutation of sentence,

There are many offences under the Code punishable with fine only: i.e.

(i)         A person in charge of a vessel negligently allowing a deserter to conceal himself. (Sec. 137)

(ii)        An owner or occupier of land on which a riot is committed and did not use use any means to prevent it. (Sec.154)

(iii)       Bribery by treating a person to drinks, etc. (Sec.171 E)

(iv)       False statements in connection with an election.

(v)        Failure to keep election accounts.

(vi)       Committing public nuisance.

All these offences are punishable with fine only. In case of default of payment of fine, in case such an offence is committed by a person, he may be sentenced to imprisonment in lieu thereof.

A question, which arises when a person is sentenced to pay a fine and cannot pay it, is "what the limit of imprisonment that is to be awarded and according to what scale"?

 Secs.65-70 lay down certain rules in this regard which are detailed below:

Sec.65. (i) if the offence is punishable with imprisonment as well as fine, then imprisonment in default of fine cannot exceed one-fourth of the term of imprisonment fixed for the offence. For example Z is convicted of theft and sentenced to 6 months imprisonment and a fine of Rs.400. The imprisonment fixed for theft is 3 years. Thus the imprisonment that can be awarded to him in case of non-payment of fine is 9 months. This does not mean that 9 months must actually be awarded. It could be any term upto 9 months can be awarded.

Sec.67: (ii) The offence may be punishable with fine only.

In such cases, the imprisonment in default of payment of fine would be:

(i)         2 months when the fine does not exceed Rs.50.

(ii)        4 months when the fine does not exceed R. 100.

(iii)       Any term not exceeding 6 months in any other case.

(iv)       Imprisonment in these three eases is to be simple imprisonment only.

Imprisonment to terminate on payment of fine—Secs.68/69: Imprisonment in default of payment of fine terminates as soon as the fine is paid. If a proportional part of the fine is paid, proportional imprisonment would have to be undergone.

Thus, if A is sentenced to a fine of Rs. 100 and to four months imprisonment in default of payment and Rs.75 is paid before the expiry of one month of the imprisonment, A will be discharged as soon as the first month has expired. If seventy five rupees be paid or levied at the time of the expiration of first month, or at any later time while A continues imprisonment, A will be immediately discharged. If fifty rupees of the fine be paid or levied before the expiration of two months of the imprisonment, A will be discharged as soon as the two months are completed. If fifty rupees be paid or levied at the time of the expiration of those two months, or at any later time while A continues in imprisonment, A will be immediately discharged.

Section 70: Fine leviable within six years, or during imprisonment.

Death not to discharge property from liability: The fine or any part thereof which remains unpaid may be levied at any time—

(i)         Within six years after the passing of the sentence, or

(ii)        Before the expiry of imprisonment, whichever is later

Further, the death of the offender does not discharge his property from liability.

What are the EXCEPTIONS to a criminal liability under the IPC?

Following are the general exceptions wherein there is no criminal liability for a person committing certain acts or omissions even of grossly criminal nature:

1.         Amongst a number of exceptions, following are few important ones:

A.        Accident (Sec. 80)

Nothing is an offence, which is done by accident or misfortune, without criminal intent or knowledge in doing of a lawful manner by lawful means with proper care and caution. All these ingredients must concur to succeed in proving the defence of accident.

Example:         A and B were participating in a wrestling competition. A dealt a blow upon B there upon, B fell and was severely injured. Under the circumstances, it is a case of pure accident.

            B.         Absence of criminal intent

In the following cases an act basically forbidden by criminal law is done without any criminal intent.

1.         Act done to avoid other harm (Sec. 81)

An act done with the knowledge that it is likely to cause harm, but done in good faith, and without any criminal intention to cause harm.

Example:         A huge fire engulfs a row of huts, a passerby pulls down houses to prevent fire from spreading. Now, he is not guilty of an offence, as he did it to avoid a major tragedy.

2.         Act of child (Sec 82)

                                                Criminal Liability of a Child

                       

Below 7 years              Between 7-12 years                 Above 12 years

            i.          An act of a child under seven years is no offence.

            ii.         An act of a child above seven and under twelve years, who has not attained sufficient maturity of understanding to judge the nature and           consequence of his conduct, is also no offence.

            iii.        An act of a child over twelve years is an offence.

Examples:       One 10 years old boy picked up a knife and threatened to cut his uncle to pieces and did actually kill him. In this case, it is obvious that the boy actually carried out what he intended and knew it would bring about the desired outcome. The boy was held liable.

3.         Act of an insane person (Sec. 84)

Nothing is an offence, which is done by a person, who, owing to unsoundness of his mind, is incapable of knowing the nature of the act or that what he is doing is wrong or contrary to law. However, the code lays down two tests of criminal responsibility even in such cases such as:

i.          Did the offender know the nature of the act?

ii.         Did the offender know that it was contrary to law?

4.         Act of an intoxicated person (Sec. 85)

Nothing is an offence which is done by a person, who owing to intoxication is incapable of knowing the nature of the act, or that what he is doing is wrong or contrary to law, provided that the thing which intoxicated him was administrated to him without his knowledge or against his will.

Noted however that Sec. 85 specifically declares that voluntary intoxication is no excuse for the commission of a crime.

5.         ‘Bonafide act’ for another’s benefit (Sec. 92)

Nothing is an offence by reason of any harm which it may cause to the person for whose benefit it is done (a) in good faith and (b) even without that person’s consent.

i.          If the circumstances are such that it is impossible for that person to signify his consent;

ii.         If that person is incapable of giving consent and has no guardian from whom consent can be obtained in time.

Example:         A enters a house which is on fire, with a child trapped inside. People below hold out a blanket. A drops the child from the housetop knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, for the child’s benefit. Here, even if the child is killed by the fall, A has committed no offence.

6.         Communication made in good faith: (Sec. 93)

Any communication made in good faith to a person is no offence, if such communication causes harm to the person to whom it is made and is for such person’s benefit.

Example:         A, a surgeon in good faith communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.

7.         Act done under Compulsion or threat (Sec. 94)

Except murder and offences against the state punishable with death, nothing in an offence, this is done by a person who is compelled to do it by threat which causes an apprehension in his mind that instant death will otherwise happen to him. This section gives protection to those persons who are threatened with instant death compelling them to commit an offence. Such a person can actually plead the defence of compulsion or coercion. However, the section states that this defence is not available where the accused in cases, where a person is compelled to murder another person or commit an offence against the state, which is punishable

            Thus, to save one’s own life, one cannot take another’s life!

8.         Right to private defence (Sec. 96 – 106):

Nothing is an offence, which is done in the exercise of the right of private defence. The right of private defence is the right to protect one’s own person against the unlawful aggression of others.

           

In this connection, the following points may be noted:

1.         There is no right of private defence under the code against any act, which is not in itself on offence under the code.

For Example: A attacks Z with a knife. Z in self-defence pulls out a revolver. This is not an offence on the part of Z. A cannot say, “Z was about to shoot me, so I killed him. “It will be seen in this case that if A had not in the first place attacked Z, nothing would have happened.

2.         The right of private defence cannot be pleaded by persons who believing that they will be attacked actually attack the others.

3.         The right to private defence should not be in excess.

CHAPTER 2

OFFENCES AGAINST THE STATE

Offences against the State are dealt with in Sections 121-130 of the Indian Penal Code. There are thus four principal offences dealt within this chapter.

1.         Waging war against the Government of India (Sections 121, 121-A, 122 and 123) 2. Overawing the Government (Sections 124 and 124-A)

3.         Waging war against any Asiatic ally of the Government of India (Sections 125, 126 and 127)

4.         Permitting or aiding the escape of state prisoner or a prisoner of war. (Secs.128, 129 and 130)

Sec.121: "Whoever wages war against the Government. of India or attempts to wage such a war, or abets the waging of such war, shall be punished with death or imprisonment for life and shall also be liable to fine".

Illustration: A joins an insurrection against the Government of India. A has committed the offence defined in Sec.121.

'War' is not limited to the true 'War' of international law but will include any forcible disturbance that is produced by a considerable number of persons and is directed at some purpose which is not of a private but of a general character, e.g., to release the prisoners in all the jails. It is not necessary that the offenders should be in military array or be armed with military weapons. It is quite sufficient if there be assembled a large body of men who intend to prevent the Government from the free exercise of its lawful power and are ready to assist with violence any opposition.

Sec.121-A: "Whoever within or outside India conspires to commit any of the offences punishable by Sec.121, or 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 10 years, and shall also be liable to fine".

Explanation: To constitute a conspiracy under this Section it is not necessary that any act or illegal omission shall take place in pursuance thereof.

Sec.121-A deals with two kinds of conspiracies:

1.         Conspiracy within or without India to commit any of the offences punishable under Sec. 121

2.         Conspiracy to overawe by means of criminal force or the show of criminal force, the Central Government or any State Government.

Under this Section, seditious conspiracy is punishable as a substantive offence apart from any illegal omission that may have taken place in pursuance thereof.

The agreement itself is enough to attract the provisions of Sec.121. In short, the criminality of the conspiracy is independent of the criminality of the overt acts.

Overawe means something more than mere apprehension. It is a situation where members of the Government feel compelled to choose between yielding to force or exposing themselves or members of the public to serious danger.

 A leading case on this point is S.H. Jhabwala case otherwise known as the Meerut Conspiracy case. Note that it does not refer to that Meerut conspiracy case that occurred during the freedom struggle days. In this case, Jhabwala along with others was convicted by the Sessions court at Meerut.

 The main activity of all the accused persons was to form unions, and they all corresponded with Soviet Russia. For such acts they were all charged with conspiracy to wage war and sentenced to various terms of imprisonment. But 

On appeal, the Allahabad High Court while acquitting Jhabwala, observed that any conspiracy to change the Central or State Government even though, it may amount to an offence under any other Sections of the Code, would not be an offence under Sec.121-A, unless it is a conspiracy to overawe such government by means of criminal force or show of criminal force.

Sec.122: "Whoever collects men, arms, or ammunition or otherwise prepares to wage war with 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".

The framers of the Indian Penal Code thought it imperative to punish severely even the beginnings of rebellion and with that view unlike other offences, they have made in the case of offences against the State even preparation punishable.

Thus any kind of offences against the state involving conspiracies, their preparations, abetment and attempt to wage a war are as much punishable as the actual waging of war itself so much so that if someone even conceals the existence of a design or plot to wage a war against the Government of India shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.

 Sedition: This is one of the most important offences against the state as defined in section 124-A which states as below:

Sec.124-A: "Whoever by words, either spoken or written or by signs or by visible representations, 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 3 years to which fine may be added or with fine".

Explanation I: The expression "disaffection" includes disloyalty and all feelings of enmity.

Explanation II: Comments expressing disapprobation of the measures of Government, with a view to obtain their alteration by lawful means. Without exciting or attempting to excite, hatred, contempt or disaffection do not constitute an offence under this section.-

Explanation III: Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite, hatred, contempt or disaffection do not constitute an offence under this section.

Sedition in essence is really a defamation of the State just like when a person defames-another, he is liable under Sec.500 of the IPC. Similarly, when the defamation relates to a class or community, it would be an offence under Sec. 153-A and when the defamation is against the established Government or state as such, it is an offence under section 124-A.

What is Sedition? Lord Fitzgerald in R.V. Sullivan (1841) explained the meaning of sedition thus:

"Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word or deed, or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to endeavour to subvert the Government, and laws of the Empire. The objects of sedition generally are to induce discontent and insurrection and to stir up opposition to the Government, and bring the administration of Justice into contempt, and the very tendency of sedition is to incite the people into insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war, or to bring into hatred or contempt the sovereign or the Government, the laws or Constitution of the realm and generally all endeavours to promote public disorder".

Is incitement to violence an essential ingredient under Sec. 124-A?

The above point was raised on behalf of the accused in Queen Empress v Bal Gangadhar Tilak, where Tilak was charged with sedition under Sec. 124-A. The trial ended in the conviction of the accused and took place before the Bombay High Court. The decision convicting the accused was affirmed in appeal by the Privy Council.

Responding to the defence raised on behalf of the accused that incitement to violence is an essential ingredient of the offence of sedition, Lord Justice Strachey observed:

"In this country the law to be applied is the Indian Penal Code. I will now ask you to look at the section and the way it is worded. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion that view is absolutely opposed to the express words of the section itself which as plainly as possible makes the exciting or attempting to excite certain feelings and not the inducing or attempting to induce any course of action such as rebellion or forcible resistance is the test of guilt".

In the Indian Constitution the framers of the Constitution deliberately dropped the word 'sedition' from Art. 19(2), with the obvious intention that criticism of Government exciting disaffection or bad feeling towards it, is not to be considered as a ground for justifying the restriction of freedom of expression and of the press unless it is of such a nature as to undermine the security of the state or tend to overthrow the legitimate government of the state.

Constitutional validity of Sec,.124-A: Article 19(1) of the .Constitution has conferred on citizens of India, the right to freedom of speech and expression subject to reasonable restrictions mentioned in Art.19(2). Art.13 (1) provides that any law which is inconsistent with the fundamental rights, contained in part III of the Constitution is void. The question that arises is:

 Whether Sec.124-A which obviously places restrictions on freedom of speech and expression, is constitutionally valid?

Following the decision of the Supreme Court in Ramesh Thapar's case, (1950) quashing the order of the Madras State prohibiting the entry and circulation of the paper 'Cross Roads' in the State of Madras, the Punjab High Court held in Tara Singh Gopichand v State (1951), that Sec.124-A is void by reason of Art.13(1) of the Constitution.

Soon thereafter, an amendment to the Constitution was moved by Constitution First Amendment Act 1951 whereby, the original clause (2) to Art.19 was replaced by the following clause:

"Nothing in Sub clause (a) of clause (1) shall effect the operation of any existing law, or prevent the State from making any law in so far as such a law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the security of the state, friendly relations with foreign states, public order, decency, or morality or in relation to contempt of court, defamation or incitement to an offence".

The matter has now finally been settled by the Supreme Court in Kedarnath v State of Bihar. In this case, the Supreme Court declared as constitutionally valid the Sec.124-A IPC by holding that it did not violate Art. 19(1)(a) of the Constitution.

“The Supreme Court thus observed: "The expression 'Government established by law' is the visible symbol of the State. The very existence of State will be in jeopardy if the Government established by law is subverted. Hence, any act within the meaning of Sec.124-A which has the effect of subverting the Government, by bringing that Government into contempt or hatred or creating disaffection against it, would be within the penal statute, because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, which have implicit in them the idea of subverting Government by violent means, which can completely be included under the term 'revolution' have been made penal by the section in question".

CHAPTER-3

OFFENCES AGAINST THE HUMAN BODY

Sections 299-377 of the Indian Penal Code lay down a number of offences relating to the human body. These offences may broadly be classified as under:

A.        Offences against human life: (Secs.299-318)

These include:

1. Culpable Homicide
2. Murder
3. Causing death by negligence
4. Abetment of suicide
5. Attempt to commit the above offences
6. Being a thug
7. Causing miscarriage, exposure of children, etc.

 

B.         Offences against the human body

These include: (Secs .319-377)

1. Hurt (Simple and Grievous)
2. Wrongful restraint and wrongful confinement
3. Criminal force and assault

(iv)       Kidnapping, Abduction, Slavery and Forced Labour

(v)        Rape

(vi)       Unnatural Offences.

For our purposes, the most important offences to know the essence of shall be culpable homicide and murder and under what circumstances, culpable homicide may amount to murder and what not…

What is a culpable homicide? As we know that a person may be deprived of his life by acts which can either be accidental, negligent or intentional. In accidental acts, no criminal liability arises in view of section 80 of the IPC as we have discussed above under exceptions to criminal liability. In the case of death caused by simple negligence there is liability under the law of torts, and in cases of gross negligence or rashness, liability can arise under both civil and criminal law. However, it is the intentional acts by which the life of a person is deprived, is what we generally call as culpable homicide. In short, the word ‘homicide’ has been derived from the Latin word `homa' (man) and `cide' (I cut or killing). Thus, it is the killing of a human being by a human being is called as homicide and the word ‘culpable’ has a simple meaning for something that is blameworthy or filled with guilt in short, intentional.

Homicide can be lawful or unlawful.

While lawful homicide includes all those cases that fall under the general exceptions under Secs.76-106 as we discussed in the preceding pages.

Unlawful homicides on the other hand, are being dealt with under Secs.299-318 of the Code and can be analyzed as follows:

1. Culpable homicide not amounting to murder (Sec.299).
2. Murder (Sec.300)
3. Rash and negligent homicide (Sec.304 A).
4. Suicide (Secs.305 and 306).

Before do we go further, we need to understand that culpable homicide may either amount to murder or may not amount to murder. In effect, it is a less severe offence than murder, being punishable with imprisonment for life whereas, ‘murder’ is much a serious offence, punishable with death or imprisonment for life. Let us now understand as to what does section-299 which defines culpable homicide say about this:

Sec .299: Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely to cause the death of the said person by such an act, commits the offence of culpable homicide.

Illustrations to understand the finer nuances involved in the wordings of above section:

(i)         ‘A’ lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in and is killed.

            In this case, A has committed the offence of culpable homicide. In this case though A had the intention to kill Z, the knowledge that his act is likely to cause death makes all the difference. If his act was certain to cause death, A would have been guilty of murder. It is the likelihood to cause death that reduced A’s offence to that of culpable homicide and not the murder. Take another example:

(ii)        A knows Z to be behind a bush. B does not know it. A intending to cause or knowing it to be likely to cause Z's death induces B to fire at the bush. B fires accordingly and kills Z. Here B may be guilty of no offence, but A has committed the offence of culpable homicide. Here too, the likelihood of causing Z's death makes the offence that of culpable homicide not amounting to murder.

(iii)       A by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush, not knowing that he was there. Here although A was doing an unlawful act of shooting at a fowl and intending to steal it away, he is however, not guilty of culpable homicide, as he did not intend to kill B, or cause death by doing an act that he knew likely to cause death as per the requirement of section-299 of IPC.

Illustration (iii) above indicates that merely because death is, so to say has been accidentally caused in the commission of an unlawful act that by itself will not convert the accidental killing into a murder.

Therefore, to conclude that all killings are not necessarily murder. Here A's primary motive or intention was just to kill & steal the fowl and not at all to murder B who has otherwise been killed accidentally. The situation could have been altogether different had A been knowing that B was behind the bush and intending to kill B actually, he had just pretended to shoot at the fowl and in consequence, shot both the fowl and B. Had this been the case, A would have certainly been charged under murder just because; his motive or intention was clearly to kill B although, it was under the pretext of killing the fowl.

Noted that Sec.299 defines the concept of culpable homicide as a genus to include both kinds of species of homicides called as murder and homicide not amounting to murder.

Sec.300 defines 'murder' and also spells out certain categories of homicides as not amounting to murder. Hence, it is imperative that Secs.299 and 300 have to be read together. Now let’s know briefly about the essential ingredients that go with the offence of culpable homicide which in the main are three as stated below:

Sec.299: 'Ingredients': A person is said to commit culpable homicide if the act which causes death is done,

(i)         with the intention of causing death.

(ii)        with the intention of causing such bodily injury as is likely to cause death.

(iii)       with the knowledge that such act is likely to cause death.

(i)         Intention of causing death: Intention is the purpose or design with which an act is done. It implies fore knowledge and a desire to commit the act. Intention is different from expectation. A person may expect to miss the victim he is shooting at, yet he intends to shoot him if he desires so. Similarly expectation does not amount to intention, for example, a doctor may expect that an operation might result in the patient's death - yet he does not intend the patient's death.

Intention is always a matter of influence from the facts and circumstances of the case. Whenever death is caused, the presumption is that death was intended to be caused unless the contrary is established. The deliberate use of deadly weapons on vital parts of the body shows nothing but the intention of causing death or such injuries as are likely to cause death. The number of injuries will also speak of the intention. Whenever the clear intention is to cause death, the offence committed will always be murder.

(ii)        With the intention of causing such bodily injury as is likely to cause death: The death of the deceased person should be connected with the act of the accused, the connection should be direct and distinct in order to hold a person responsible of culpable homicide of any kind. Thus if the injury is such as is likely to cause death and such injury is caused intentionally, the offence of culpable homicide is complete provided the victim dies as a result of such injury. A blow on the head with a lathi is likely to cause death.

(iii)       With the knowledge that such act is likely to cause death: Knowledge is the awareness of the consequences of an act. Knowledge is a weaker term than intention. The leading illustrative case on this point is that of R.V. Govinda (18'76) where the accused had knocked his wife down, put his knee on her chest, and struck blows on her face with a closed fist resulting in extravasations of blood on the brain and ultimate death. Held the accused was guilty of only culpable homicide (not murder) as there was no intention to cause death though knowledge could be presumed.

It can perhaps be tentatively said that while the first ingredient of Sec.299 clearly indicates a murder, ingredients two and three are cases of culpable homicide not amounting to murder since death is only a likely result and not a certainty.

There are three explanations to Sec.299:

Explanation I: A person, who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

Thus an accused will be guilty of culpable homicide, if he, by his act knowingly accelerated the death of the victim who was already labouring under a disease or disorder. Of course, he must have known about the victim's condition and then must have accelerated his death.

Explanation II: Where the death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death although, by resorting to proper remedies and timely medical care and skilful treatment, the death might have been prevented.

According to this explanation, the omission or even refusal to resort to medical treatment will not be a ground of defence, though resort to proper remedies and skilful treatment might have prevented death. If the bodily injury which resulted in death was caused by the accused (of course with the necessary intention or knowledge), the presumption would be that the person causing bodily injury 'caused the death' and it will not be open to him to say that proper treatment would have saved the life of the victim.

Again, even if' medical treatment was resorted to but the victim died, it cannot also be pleaded that the treatment (e.g. operation) was not done skillfully.

Explanation III: The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

What is the bottom-line of Sec.299? Its bottom-line lies in the fact that where there is only a likelihood of' causing death, and death is not a certainty, it will amount to the offence of culpable homicide not amounting to murder. Apart from this, Sec.300 dealing with murder, enumerates five more situations or circumstances where a culpable homicide will not amount to murder which are as stated below:

Exception I to Sec.300: Culpable homicide is not a murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisions:

(i)         That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

(ii)        That the provocation is not given by anything done in obedience to the law; or by a public servant in the lawful exercise of the powers of a such public servant.

(iii)       That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation: Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations

(i)         A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(ii)        Y gives grave and sudden provocation to A. A on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder but culpable homicide.

(iii)       A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his power cannot be deemed as sudden or unforeseen.

(iv)       A attempts to pull B's nose. B in the exercise of the right of private defence lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence and kills B. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.

 

Regarding provocation, it is pertinent to note the following points:

(i)         The act must be done whilst the person doing it is deprived of the power of self-control by grave and sudden provocation. In other words, it must be done under the immediate impulse of provocation.

(ii)        The provocation must be both grave as well as sudden. If it is one and not the other, this exception will not apply.

(iii)       The provocation must be such as will upset, not merely a hasty and hot-tempered person, but one of ordinary sense and calmness.

(iv)       If the act is not done under the influence of the excitement, but after such an interval of time as, in the common course of human feelings, is sufficient for reflection, the exception is in-applicable. However great the provocation, if there is time enough for passion to subside, the homicide will be murder.

(v)        The provocation is not mitigation if the accused himself courts provocation.

Adulterous intercourse: Adulterous intercourse has been held, in several cases, to give rise to grave and sudden provocation. But if death of the adulterer is caused not in a fit of passion, but with subsequent deliberation, this exception does not apply. If a man finding another in the act of adultery with his wife kills him on the spot, the provocation would ordinarily be deemed sufficient to mitigate his offence. But if he kills the adulterer deliberately and in revenge, after a considerable time has elapsed, he would probably be deprived of the benefit of the exception and shall certainly be charged under murder.

A leading case on point is K.M. Nanavati vs. State of Bombay AIR, 1962: In this case the Supreme Court observed that when the wife of the accused confessed to him that she has illicit intimacy with the deceased, it can be assumed that he had momentarily lost his self-control. But then after this when he drove his wife and children to the cinema, left them there, went to his ship, took a revolver, loaded it, did some official business and drove his car to the office of the deceased and then to his flat and shot him dead, and between the time when he left his house and the time when the murder took place, 3 hours had elapsed, there was sufficient time for the accused to regain his self-control and composure. His conduct clearly shows that the murder was a deliberate and calculated one, and that it did not fall within the ambit of Exception -1 to Sec.300.

The Supreme Court ruling on the above case also reversed the earlier trend of judicial decisions that mere words however provocative, do not amount to sufficient provocation so as to reduce murder to culpable homicide. The Supreme Court held in the above case, that 'in India words and gestures may also, under certain circumstances, cause grave and sudden provocation to the accused so as to bring his act within the ambit of the first exception to Sec.300'.

Exception - II: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he is exercising his such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration: Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol, but Z persists in the assault. A believing in good faith, that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder but only culpable homicide.

A leading case on point is Lakshmi Koeri vs. State of Bihar AIR, 1966: In this case, the officer in charge of a Police Station at Patna deputed a havaldar of Police and a Constable to arrest Lakshmi Koeri on the suspicion that he had committed theft in a dwelling house. Both the persons deputed were not in the proper uniform. While the accused was coming out of a toddy shop, he was pursued by the men and the havaldar managed to catch him just on the side of a Nulla. The accused inflicted a dagger blow on the havaldar's arm. The havaldar fell into the Nulla but dragged the accused into it. The accused fell on the havaldar, gave several more dagger blows to the havaldar and fled away. The havaldar died in the hospital. The Sessions Court convicted the accused of murder. On appeal the High Court observed that a person is not deprived of his right of private defence when he has no reason to believe that the person doing the act is a public servant and since the policemen were not in their uniform there was nothing to show that the accused knew that the man who had caught him was a Police Officer and thus a public servant. However while causing as many as nine wounds including the fatal one, when the havaldar was helpless shows that the accused wanted to cause much more harm than necessary for his defence. As such the High Court held that while the accused had initially the right of private defence, the case does not fall within the ambit of exception II to Sec.300. The High Court upheld the sentence of life Imprisonment for murder awarded by the Sessions Court.

Thus, for the application of this exception, it is essential that the person causing hurt in the bonafide exercise of the right of private defence should act without any intention of doing more harm than is necessary for the purpose of such defence.

Exception - III: Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. This exception protects a public servant (or a person aiding a public servant) acting for the advancement of public justice, if either of them exceeds the powers given to them by law and causes death, it gives protection so long as the public servant acts in good faith, but if his act is illegal and unauthorized by law, or if he glaringly exceeds the powers given to him by law, the exception will not protect him.

A leading case on point is Dukhi Singh vs. The State of U.P AIR, 1955: In this case four members of the Railway Protection Police, including Dukhi Singh, a constable, were travelling in a train from - Banaras to Allahabad. At a particular station between the points of journey, Dukhi Singh noticed a person named Nanku who was standing near a goods wagon under suspicious circumstances. In view of reports of previous thefts from railway wagons at the said station, Dukhi Singh arrested Nanku and brought him to his own compartment. As the train started Nanku jumped out and was followed by Dukhi Singh, While Dukhi Singh was enquiring with the engine driver the whereabouts of Nanku, Nanku got down from the train and stood near the footboard. Dukhi Singh shot Nanku who fell wounded and died subsequently. The Allahabad High Court held that while Sec.46 of the Criminal Procedure Code provided that when a police officer arrests a person and such person forcibly resists the arrest, the police officer may use all means necessary to effect the arrest. But the instant case does not give him a right to cause the death of the arrested person unless, such person is accused of an offence punishable with death or transportation for life.

However, the Court further held that the case fell within the ambit of Exception 3 to Sec.300 which provides that culpable homicide is not murder if the offender is a public servant and exceeds his power on the advancement of public justice without having ill-will towards the person whose death he has caused.

Exception – IV: Culpable homicide is not murder if it is committed without premeditation in 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 or unusual manner.

It is immaterial in such cases which party offers the provocation or commits the first assault.

In Ram Bharosey vs. Uttar Pradesh, 1968: the prosecution case was that, Ram Bharosey on hearing his beloved's cry for help rushed to her rescue with a weapon and attacked the victim Anokhey Lal at the instigation of the second appellant, Asha Devi, his beloved. Both were convicted by the Session Court but acquitted by the High Court. The State appealed to the Supreme Court. The contention of counsel for Ram Bharosey was that there was a sudden quarrel and in the heat of passion, Ram Bharosey acted without premeditation and that he did not take undue advantage nor did he act in an unusual manner.

The Supreme Court rejected the contention and observed that since the quarrel was one in which Ram Bharosey was not really concerned and since he went armed with a weapon and instead of using his hands deliberately used his weapon against an unarmed man, the case did not fall within the ambit of Exception-IV to Sec.300. The order of acquittal of the High Court was set aside. Ram Bharosey was sentenced to rigorous imprisonment for life.

It should be noted in the above context that a sudden fight or quarrel which mitigates the offence of murder to one of culpable homicide not amounting to murder, must be one between the deceased and the accused. The accused will not be entitled to the benefit of this exception if he quarrels with one person and kills another.

Exception V: Culpable homicide is not murder when the person whose death is caused being above the age of 18 years suffers death or takes the risk of death with his own consent.

Illustration: A, by instigation, voluntarily causes Z, a person under 18 years of age, to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.

This exception provides for lesser punishment when a person has been killed by his own consent.

What amounts a ‘culpable homicide’ to be a murder?

Culpable homicide amounting to murder Sec.300: Except in the cases as we noted above culpable homicide is murder, if it fulfills the following conditions:

Firstly, if the act by which the death is caused is done with the intention of causing death, or

Secondly— if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm or injury has been caused, or

Thirdly — if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary cause of nature to cause death, or

Fourthly — if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations

(i)         A shoots Z with the intention of killing him. Z dies inconsequence. A commits murder.

(ii)        A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in Consequence of the blow; A is guilty of murder although, the blow might not have been sufficient in the ordinary course of nature to cause the death of a person being in a sound state of health.

But if A, not knowing that Z is labouring under any disease, gives, him such a blow as would not in the ordinary course of nature to kill a person who is in a sound state of health shall not be held guilty of murder.

(iii)       A intentionally gives Z a sword cut or club wound, sufficient to cause the death of a man in the ordinary Course of nature. Z dies in consequence. Here A is guilty of murder; although he may not have intended to cause Z's death.

(iv)       A, without any excuse, fires a leaded canon into a crowd of persons and kills one of them. A is guilty of murder although, he may not have had a premeditated design to kill any particular individual.

Distinction between capable homicide (not amounting to murder) and murder: All cases of murder are also cases of culpable homicide but not vice versa. This is so because there are circumstances in which culpable homicide does amount to murder and other cases where it does not. The distinction between these two offences has been lucidly stated by Justice Melville in Govinda R.V. 1876. In that case the accused had knocked his wife down, put one knee on her chest, and struck her two or three violent blows on her face with his fist. This resulted in extravasation of blood on her brain, as a consequence of which she died. The Court held that this was a case of culpable homicide and not murder because:

(i)         There was no intention to cause death.

(ii)        The bodily injury was not sufficient in the ordinary course of nature to cause death. Justice Melville compared Sec.299 and 300 in the following manner.

 

Sec.299

A person commits culpable homicide, if the act by which the death is caused is done:

a)         With the intention of causing death.

b)         With the intention of causing such bodily injury as is likely to cause death.

c)         With the knowledge that the act is likely to cause death.

Sec.300

Subject to certain exceptions culpable homicide is murder, if the act by which the death is caused is done:

(i)         With the intention of causing death.

(ii)        With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the injury is caused.

(iii)       With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

(iv)       With the knowledge that the act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death.

Justice Melville further observed that:

(a and (i) show that where there is an intention to kill, the offence is always murder.

The essence of (ii) is that the offence is murder if the offender knows that the particular person who is injured is likely, either from peculiarity of constitution, or immature age, or other special circumstance, to be killed by an injury which would not ordinarily cause death. (Refer illustration.)

As regards (b) and (iii) it is on a comparison of these two clauses that the decision in doubtful cases must generally depend. The offence is culpable homicide, if the bodily injury intended to be inflicted is likely to cause death, it is murder if such injury is sufficient in the ordinary course of nature to cause death. The distinction is fine but appreciable. Practically it resolves itself into a consideration of the nature of the weapon used. A blow from the fist or a stick on a vital part may be likely to cause death; a wound from a sword in a vital part is sufficient in the ordinary course of nature to cause death.

(c) and (iv): Generally apply to cases where there is no intention to cause death or bodily injury. Acts of furious driving, shooting at a target near a public road, etc., are instances of acts falling under (c) and (iv).

In such cases, whether the offence amounts to culpable homicide, or murder, will depend on the degree of risk to human life, If death is a likely result, it will be culpable homicide; however if death is the more probable result, it will be murder.

In Rajwant Singh vs State AIR, 1966, the Supreme Court explained the difference between culpable homicide and murder by observing that both the offences involve killing of a person but what distinguishes the two is the presence of special mens rea which consists of four mental attitudes (specified in Sec.300) in the presence of any of which the lesser offence (under Sec.299) becomes greater. Unless the offence involves at least one of the four specified mental attitudes, it cannot be murder.

Analysis of Sec.300

Clause 1: Act done with the intention of causing death: The word 'act' includes omissions as well. An omission by which death is caused will be punishable as if death is caused directly by the act. Intention is inferred from the facts and circumstances of a case by the application of the principle, that a man is presumed to intend the consequences of his act. Thus if a person fires a gun at such a close range that it would not have any other effect than to kill, the inference would be that such act was intended to cause death and hence the offence would be of murder.

Similarly where a person rains lathi blows on the head of another mercilessly and the blows result in the death of the other person, the offence of murder would have been committed.

When death is caused with the intention of causing death, no doubt the act becomes culpable homicide first, but since this culpable homicide was committed with the intention of causing death, it becomes murder.

Clause 2: With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. The word 'knows' in the above clause is of vital importance. Unless the knowledge that such bodily injury was likely to cause death is proved the offender cannot be punished for murder under the above clause. The absence of 'knowledge' would bring the offence within the purview of Sec.299.

In Sec.299 the words are with the intention of causing such bodily injury as is likely to cause death". There is a clear distinction between 'as is likely' and "as the offender knows to be likely''. The injury may be likely to cause death and the offender may not know it. If he knew it, the offence would be murder, if he did not know it; the offence would be culpable homicide.

Knowledge of the accused is to be inferred from the facts and circumstances of each case.

In Rajwant vs. State AIR, 1966, where the victim's mouth was covered with adhesive; nostrils were plugged with cotton, and hands and legs tied with rope, it was held that the case fell within the ambit of this clause.

Clause 3: With the intention of causing bodily injury sufficient in the ordinary course of nature to cause death: 'Sufficient to cause death' is a stronger phrase than 'likely to cause death' which appears in Sec.299. This clause indicates a greater degree of probability of causing death. The question whether the injuries are sufficient to cause death is a matter of medical opinion. An injury may not be sufficient in the ordinary course of nature to cause death and yet the death may ensue. On the other hand, the injury may be sufficient in the ordinary course of nature to cause death but the death may not ensue, for example, timely treatment may save life. Where the death ensues, it is to be seen whether injuries were sufficient in the ordinary course of nature to cause death. If the answer is yes, the offence will be murder, and it 'will be no defence to plead that the life could have been saved by proper medical treatment.

Clause 4: Person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, without any excuse.

Mere knowledge of likelihood of death will not amount to murder. The knowledge should be that of every likelihood and the act must be imminently dangerous. Further, it should also have been committed without any excuse for incurring the risk of causing death. The clause appears to provide for acts which endanger the lives of many e.g., firing at a mob, poisoning a Well. Where the act is so imminently dangerous the accused must be prescribed to know the probability of death.

CULPABLE HOMICIDE & MURDER – A COMPARISON

Sec 299	Sec 300
A person commits culpable homicide if the act by which the death is caused is done:-	Subject to certain exceptions culpable homicide is murder, if the act by which the death is caused is done:-
With the intention of causing death;	With the intention of causing death; With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
With the intention of causing such bodily injury as is likely to cause death;	With the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
With the knowledge that he is likely by such act to cause death.	With the knowledge that the act is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death.

Offence of Kidnapping & Abduction:

Kidnapping is of two kinds:

(i)         Kidnapping from India

(ii)        Kidnapping from lawful guardianship.

Sec. 360 defines kidnapping from India in the following words:

 “Whoever conveys any person beyond the limits of India, without the consent of that person or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India.”

Noted that the offence of kidnapping from India can be committed on any person of any age. If the person or his guardian consents, then, of course, there is no kidnapping within the meaning of this Section. The offence of kidnapping may be committed by means of assault, restraint, inducement, etc.

In fact, it is not the means, but the end or effect which is important for the purposes of this section. From the above definition, we can conclude that

The three essential ingredients of kidnapping from India are:

(i)         That the person kidnapped was, at the time of the offence, in India.

(ii)        That the accused conveyed him or her beyond the limits of India.

(iii)       That the accused did so

(a)        Without his consent or

(b)        Without the consent of another legally authorized person to consent on his or her behalf.

Kidnapping from lawful guardianship: Sec.361 defines it thus:

Whoever takes or entices,

(a)        a minor under 16 years of age or

(b)        a minor female under 18 years of age

(c)        a person of unsound mind out of the keeping and without the consent of the lawful guardian, is said to kidnap such minor or person from lawful guardianship.

Lawful guardian includes any person lawfully entrusted with the care or custody of the minor or other person.

Exception: The section does not apply to the act of a person who, in good faith, believes himself to be the father or entitled to the custody of an illegitimate child, unless the act is committed for an immoral or unlawful purpose.

Taking or enticing: Taking refers to seizing, capturing, or conveying. Once the boy or the girl has been actually taken out of the keeping of the lawful guardian, the act is complete. Taking need not be by force, and it is immaterial whether the boy or girl consents or not.

Enticing means alluring, i.e., an act by which the person kidnapped is induced of his or her own accord to go with the kidnapper. Allurement may be in the form of sweets, money, cinema, marriage, etc.

It is not necessary to show that it was done with the consent of the person kidnapped, as consent of minor is no consent. It is the consent of the lawful guardian that can be pleaded as a defence and not the consent of the person kidnapped.

Out of keeping: 'Out of keeping' is a phrase of wide amplitude and covers 'change' protection, maintenance and control. So if the minor is not in the custody of a lawful guardian already, the offence cannot be committed.

A child walking in the street out of the house of his father is still under the guardianship of the father and to entice away such a child constitutes kidnapping. A minor girl leaving the immediate custody of her lawful guardian for a temporary purpose will still be in her lawful guardian's keeping.

Consider the following factual case for clarity: A, a married woman under 18 years, being dissatisfied with her mother-in-law, left her husband's home to go to her maternal uncle. On the way she was induced by K to accompany him and he deceitfully took her to a village where she was kept in the house of K's brother L. Here negotiations were begun by K to marry A, but on A disclosing her identity to the inquirers, K left the village. Thereupon L took her to the police station and pending inquiry by the police she lived for a month at this place.

In this case the Court held that K was guilty of kidnapping in as much as although the girl left home of her own accord, she did not cease to be under the guardianship of the husband, her guardian. But K's brother was not guilty of any offence as he had done nothing in furtherance of a common intention.

Difference between kidnapping from India and from lawful guardianship:

(i)         A person of any age can be kidnapped from India, whereas only minors and lunatics can be kidnapped from lawful guardianship.

(ii)        Want of consent in the former is necessary, while consent of the person kidnapped from lawful guardianship is entirely immaterial.

IPC prescribes the punishment for kidnapping a person from India or from lawful guardianship. The punishment is imprisonment up to 7 years as well as fine.

Abduction (Sec.362): “Whoever by force compels, or by any other deceitful means induces, any person to go from any place, is said to abduct that person.”

Important to note that this section merely provides a definition of the word abduction. Abduction is not an offence in itself; it is punishable only when it is done with certain intent as spelt out in Secs. 364-368 i.e. with intent to murder or rape.

Force: Actual force is required, and not a just show or threat of force. Moreover, force or fraud must have been practiced on the person abducted.

Continuing Offence: The offence of abduction unlike kidnapping is a continuing offence i.e., a girl is being abducted not only when she is first taken but also when she is removed from one place to another. The person abducted need not necessarily be a minor.

Abduction and kidnapping from lawful guardianship:

Points of difference

(i)         Kidnapping from lawful guardianship relates only to minors (below 16 if male and below 18 if female) or persons of unsound mind, while abduction can be committed in respect of any person irrespective of his or her age.

(ii)        Kidnapping must be from lawful guardianship while, in the case of abduction, it is not necessary.

(iii)       Kidnapping from lawful guardianship involves 'taking' or 'enticing', while abduction involves 'forceful compulsion' or inducement by 'deceitful means'.

(iv)       In kidnapping from lawful guardianship, consent of person kidnapped is immaterial. In the case of abduction, consent is material if given freely and voluntarily. It is a good defence and condones the offence, if the person abducted is not a minor or a person of unsound mind.

(v)        In kidnapping from lawful guardianship intention is irrelevant, while in the case of kidnapping, it is extremely relevant as abduction by itself is not punishable. It is punishable only when it is committed with intent to rape, murder, etc.

(vi)       Kidnapping from lawful guardianship is not a continuing offence, while abduction is a continuing offence.

Kidnapping from India and Abduction: A Comparison

(i)         In both cases it can be committed in respect of any person of any age.

(ii)        The offence is a continuing offence in both cases.

(iii)       In both cases, when consent is given freely and voluntarily no offence is committed.

(iv)       In kidnapping from India, the victim must be taken out of India; in abduction on the other hand, the victim may be taken anywhere within India or outside India.

(v)        Kidnapping from India is a substantive offence, while abduction is punishable only when it is committed with the intention of committing rape, murder, etc.

CHAPTER 4

OFFENCES AGAINST PROPERTY

Theft: Sec. 378 states that 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'.

Explanation I: A thing so long as it is attached to the earth not being a movable property, is not the subject of theft, but it becomes capable of being the subject of theft as soon as it is severed from the earth.

Explanation II: A moving effected by the same act which effects the severance may be a theft.

 Explanation III: A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing as well as by actually moving it.

Explanation IV: A person who by any means causes an animal to move is said to move that animal.

Explanation. V: The consent mentioned in the definition may be expressed or implied and may be given either by the person in possession or by any person having for that purpose authority either expressed or implied.

Illustrations

(i)         A cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here as soon as A has severed the tree in order to such taking, he has committed theft.

(ii)        A puts a bait for dogs in his pocket and thus induces Z's dog to follow him. Here if A's intention is to dishonestly take the dog out of Z's possession without Z's consent, A has committed theft as soon as Z's dog has begun to follow A.

(iii)       A finds a ring on the highway, not in the possession of anyone. A by taking it commits no theft, though he may commit criminal misappropriation of property.

(iv)       Z, going on a journey entrusts a plate to A, the keeper of a ware-house till Z's return. A takes the plate to a goldsmith and sells it. Here the plate was not in Z's possession. It could not therefore be taken out of Z's possession and A has not committed theft, though he may have committed criminal breach of trust.

(v)        A in good faith believing property belonging to Z to be A's own property, takes the property out of Z’s possession. Here, as A does not take dishonestly, he does not commit theft.

In short, theft may be defined as removal of movable property, from the possession of another with dishonest intention and without that person's consent.

Noted that ‘dishonest intention’ is the prime ingredient of the offence of theft.

Sec. 24 defines the word 'dishonestly' as: 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'.

Again Sec. 23 defines wrongful gain as 'gain by unlawful means of property to which the person gaining is not legally entitled'. Wrongful loss is defined as 'loss by unlawful means of property to which the person losing it is legally entitled'.

Further the expression 'wrongful gain' includes wrongful retention, and wrongful loss includes being kept out of property as well as being wrongfully deprived of property. Thus even if there is no wrongful gain to anybody, the offence is committed if wrongful loss is caused to another. Both wrongful gain and wrongful loss need not be caused, either is sufficient. The intention to take dishonestly exists when the taker intends to cause either wrongful gain to one person or wrongful loss to another. It is not necessary that the taking should be permanent or with an intention to appropriate the thing taken.

Now let’s discuss the essential ingredients of theft in little more detail:

Firstly, the property must be movable: The subject of theft must always be a movable property. Things attached to the earth become movable when severed from the earth. Thus a ceiling fan once detached from the ceiling becomes a movable property and can be the subject matter of theft. Movable property is defined by Sec. 22 thus "the words 'immovable 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".

Secondly, removal should be out of the possession of another person: There should be actual 'moving' of the property in order to take it; the least removal is sufficient and constitutes the offence of theft. Thus, where the accused takes out the money from a box is caught before he can move away, the offence is complete. Removal or moving can be caused by:

(a)        Cutting of a tree, it is moved by the same act of cutting.

(b)        Directing a dog to take away stolen goods.

(c)        Moving an animal with a load on its back, thus the articles on its back are also moved. Further it is not necessary that the property should be removed out of the reach of the owner or carried away from the place where it was found. As observed earlier even temporary deprivation is sufficient.

Dispossession of the other person: In order to constitute theft, the property must be removed out of the possession of any person. 'Possession' and not 'Ownership' is the essential element in the offence of theft. Thus, one can commit theft of one's own property if it is in possession of another for the time being and is dishonestly taken from that other's possession without his consent.

Foe example, if A, having pawned his watch to Z, takes it out of Z’s possession without Z's consent, not having paid what he borrowed on the watch; he commits theft, though the watch is his own property, in as much as he takes it dishonestly.

Moreover, in order to constitute theft, the property must have been in the possession of someone and then removed out of his possession. Thus, when the property is in nobody's possession, it cannot be taken. A “res nullius”, that is an ownerless thing cannot become the subject matter of theft.

Thirdly, the removal should be without the consent of the person in whose possession it has been at the time of theft: The property must be moved without the consent of the person in possession of it. Such consent may be expressed or implied. Further the person's possession over the thing may be rightful or wrongful. It is enough if he has physical control over the thing or property.

Example: A, being on friendly terms with Z, goes into Z's library, in Z's absence, and takes away a book without Z’s express consent for the purpose of merely reading it, and with the intention of returning it. It is probable that A may have thought that he has had Z's implied consent to use Z's book, If that was A's impression, A has not committed theft.

Extortion (Sec. 383): Whoever intentionally puts any person in fear of any injury to that person, or to any other and thereby, dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into valuable security commits extortion'.

Illustration

(i)         A threatens to publish a defamatory libel concerning Z unless, Z gives him money. He thus 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 sum of money 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 or affix his seal onto a blank paper and deliver it to Z. 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 two important ingredients of extortion are being explained herein below:

(i)         Intentionally putting any person in fear of injury to himself or to any other and         thereby,

 (ii)       Dishonestly inducing such person to part with any property or any valuable thing.

Fear of injury to a person or to any other person: A person must be threatened and threatened with an injury not necessarily to himself but, to any other person. The term injury is defined in Sec. 44 as 'any harm whatever illegally caused to any person in body, mind, reputation or property'. Thus, the fear of injury need not necessarily be personal or physical injury. An injury could be construed to someone’s reputation as well. However, the 'fear' in extortion must be of such a nature as to unsettle the mind of the person on whom it operates so as to deprive him of the element of free voluntary action. Further, Fear must always precede the delivery of any valuable.

Dishonestly induces to deliver property or valuable to anyone: The intention of the person who extorts must be dishonest, i.e., to cause wrongful loss or wrongful gain. He must dishonestly induce the person put in fear to deliver property to any person. The delivery of property must take place because, without such delivery no extortion can be committed. The delivery of property may be direct from the person put in fear to the offender or to any other person on the offender's direction. The property delivered may be any property movable or immovable, valuable security or something convertible into a valuable security.

Valuable Security is defined in Sec. 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 he lies under a legal liability, or has not a certain legal right'. Where the property is not delivered by the person put in fear but carried off by the person putting in fear, the offence would be robbery and not extortion. Where there is no inducement to deliver property there is no extortion. Note that there is a fine line of distinction between theft and extortion as is explained below:

Theft and Extortion distinguished:

(i)         In theft, the question of consent does not arise, while in extortion, consent is obtained wrongfully by causing a fear of injury.

(ii)        In theft, the property is limited to movable property while, immovable property may also be the subject matter of extortion.

(iii)       In theft, the element of force and fear does not arise, while in extortion, it is a necessary element.

(iv)       In extortion, there is a delivery of property by the person himself, put in fear, while in theft; there is dishonest removal of property. Take the example of an old case to understand extortion completely:

In Emperor V Fazlur Rehman (1929) a mukhstar in a criminal case, threatened with intent to extort money, to put questions to prosecution witnesses which were scandalous and indecent, and which were intended to annoy and insult, it was held that he had committed an offence under this Section.

Robbery and Dacoity: Sec.390: In all robbery, there is either theft or extortion.

When do a theft amounts to a robbery?  Theft is 'robbery' if in order to the committing of the theft, or in committing the theft, or in carrying away, or attempting to carry away property, obtained by theft, the offender for that end, voluntarily causes or attempts to cause to any person death, or of instant hurt, or of instant wrongful restraint.

When does extortion amounts to robbery?  Extortion is 'robbery', if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing exorted.

Explanation: The offender is said to be present, if he is sufficiently near to the other person who has been put in fear of instant death, or of instant hurt, or instant wrongful restraint.

Illustrations:

(i)         A holds 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.

(ii)        A meets Z on the high roads, flaunts 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 committed robbery.

(iii)       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 Rs.10, 000’. This is extortion, and punishable as such, but it is not robbery, unless Z is put in fear of the instant death of his child. From the above, it can plainly be said that robbery is an aggravated form of theft or extortion.

According to the authors of the Indian Penal Code, there can be no case of robbery which does not fall within the definition either of theft or of extortion, but in practice, it will perpetually be a matter of doubt whether a particular act of robbery was a theft or extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property and begins to pull off Z's ornaments. Z in terror begs that A take all he has, and spare his life, and assists in taking off his ornaments and delivers them to A. Here such ornaments as are taken without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime, nor is it at all necessary for the ends of justice that this should be ascertained. Hence, to serve the ends of justice, it is prudent to regard all such aggravated offences as robbery. Let’s now analyse in brief, the essential ingredients of the offence of robbery for little more clarity:

Ingredients of robbery:

In robbery, the use of violence must be for one of the following four purposes:

(i)         It must be in order to commit the theft.

(ii)        It must be used in committing the theft.

(iii)       It must be used in carrying away stolen property.

(iv)       It must be used in attempting to carry away stolen property.

To be noted very carefully in this context that if the force is used for any other purpose and not any of the purposes mentioned above, it will not amount to robbery. Thus, if a thief being pursued by the owner abandons the property and finding himself still chased, throws stones at his pursuer in order to escape, the offence is not robbery, even if hurt is actually being caused to the chaser from the throwing of such stones. In this case, the thief threw stones to avoid capture and not to take away the stolen property. The use of violence will not convert theft into robbery unless; the violence is used for one of the ends specified in Sec. 390 above.

Hurt during the act must be caused by the offender himself: The hurt caused by the offender must be 'voluntarily caused hence, accidental injuries will not have the effect of converting theft into robbery. Thus, if a thief inflicts an injury accidentally, it is not robbery. A thief while attempting to steal a basket was cutting a string, by which the basket was tied, cut the wrist of the owner who tried to seize the basket. The thief ran away. It was held that he was guilty of theft and not robbery as the injury inflicted was accidental,

Carrying away: Even if death, hurt or wrongful restraint is caused after committing the theft in order to carry away the property obtained by theft, the offence of robbery would be committed.

 Thus in essence, robbery can be said to be theft plus violence or fear of instant violence. In fine print, we distinguish theft & robbery as below:

• Theft and Robbery distinguished: Robbery is theft coupled with violence. An offence of robbery involves the offence of theft but the offence of theft does not involve robbery.

The crucial point of distinction between theft and robbery lies in voluntarily causing (or attempting to cause) death or hurt or wrongful restraint or fear of instant death, hurt or wrongful restraint, in order to commit theft or while committing theft, or while carrying away, or attempting to carry away the property obtained by theft. Thus force and violence turns the offence of theft into robbery.

• Extortion and Robbery distinguished: Robbery is extortion plus the presence of the offender on the spot plus fear of instant violence plus immediate delivery. Extortion and robbery are committed by wrongfully obtaining the consent of the owner, and both can be committed by a single person. The element of fear exists in both and there is delivery of property by the victim. Robbery however as said above, is an aggravated form of extortion.

Extortion becomes robbery if

1. the offender at the time of committing the offence is in the presence of the person put in fear,
2. puts the person in fear of instant death, hurt or wrongful restraint and
3. thereby, induces him then and there to deliver the thing extorted.

Difference between theft, extortion and robbery: Six important points may be noted in this regard:

1. Consent: in theft and robbery, the property is taken away without the owner's consent, while in extortion, the property is taken by wrongfully obtaining the owner's consent,
2. Property: While theft relates to movable property, extortion and robbery can be committed in respect of immovable property also.
3. Use of force: in robbery and extortion, the element of force and violence is present while, it is absent in the offence of theft,

Number of Culprits: All the three offences can be committed by one person only.

(v)        Element of Fear: While the element of fear is absent in the case of theft, it is very much present both in the offence of extortion and robbery.

(vi)       Delivery: In theft, there can be no delivery as envisaged in extortion and robbery.

 

Dacoity (Sec. 391): When five or more persons conjointly commit or 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, amount to five or more, every person so committing, attempting or aiding is said to commit or have committed the offence of `Dacoity'.

Thus, dacoity is a robbery committed by five or more persons. The gravity of the offence lies in the terror it causes by the presence of five or more offenders.

Abettors who are present and aiding when the crime is committed are counted in the number.

Thus, dacoity can be committed by:

1. five or more persons attempting to commit robbery,
2. five or more persons committing robbery,
3. one person attempting to commit robbery and four others present and aiding in the attempt,
4. one person committing the robbery and four others present and aiding in its commission.

While preparation to commit an offence is not punishable under the IPC yet, there are three exceptions to the above rule. These are:

1. Preparation to wage war against the Government of India (Sec. 122),
2. Preparation to commit depredation on territories at peace with the Government of India (Sec.126),
3. Preparation to commit dacoity (Sec.399).

Thus, it must be noted carefully that even a ‘preparation’ to commit dacoity is punishable under the IPC.

Noted also that preparation is the stage before attempt. Persons assembled with weapons etc. to commit dacoity will be said to have made preparation and if they are found doing some act towards commission, they will be said to be 'attempting' to commit dacoity. However, so long as they are only engaged in making plans for gaining entry or effecting retreat, or are lying in wait they are only making preparations.

Criminal misappropriation of property (Sec.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 both.

Illustrations:

(i)         A takes property belonging to Z out of Z's possession in good faith believing at the time when he takes it, that the property belongs to himself. A is not guilty of theft but if after discovering his mistake, he dishonestly appropriates the property to his own use, he is guilty of an offence under this section.

(ii)        A being on friendly terms with Z, goes into Z's library in Z's absence and takes away a book without Z's expressed consent. Here if A was under the impression that he had Z's implied consent to take a 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.

(iii)       A and B being joint-owners of a horse, A takes the horse out of B's possession, intending to use it. Here as A has a right to use the horse, he does not dishonestly misappropriate it. But if A sells the horse and appropriates the whole proceeds to his own use, he is guilty of an offence under this Section.

Explanation I: A's dishonest misappropriation even for a time being only is very much a misappropriation within the meaning of this section. Note the following illustration as an example:

A finds a Government pronote 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 back to Z. A has committed an offence under this section.

Explanation II: A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for or 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 he appropriates it to his own use, when he 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 sufficient if 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 be found.

Illustrations:

(i)         A finds 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.

(ii)        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.

(iii)       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 the offence described under this section.

Thus, from the above definition and illustrations, the main ingredients of criminal misappropriation of property can be stated as below:

(a)        Dishonest misappropriation or conversion of property for a person's own use and

(b)        such a property must be a movable one.

Say for example, the accused found a purse on the pavement of a temple and he put it in his pocket. He was immediately arrested afterwards. It was held that he was not guilty since by mere picking up the purse and putting it in his pocket, it could not be presumed that he did it with the intention of misappropriating whatever that it contained.

Theft and Criminal misappropriation distinguished:

(i)         In theft, the purpose of the offender is to remove property from out of the possession of a person while in Criminal Misappropriation of property, the offender is already in possession either lawfully because, he has found it or is a joint owner of it, or has had his possession of the said property even if not strictly lawful, is not punishable as an offence, because he acquired it under some mistaken notion of right in himself or consent given by another.

(ii)        In theft, the moving itself is an offence. In criminal misappropriation the moving may not be an offence, it may be lawful, it is the subsequent intention to misappropriate or convert the property that constitutes the offence.

 (iii)      In theft moving of the property takes place without the consent of the owner. In criminal misappropriation, the offender may have come into possession even with the consent of the owner, and if he subsequently converts the property to his own use, he commits the offence.

 (iv)      In theft dishonest intention precedes the act of taking the property, while in criminal misappropriation, dishonest intention is subsequent to the act of taking and is manifested in the conversion or misappropriation of the property.

Criminal breach of trust: Sec.405: Whoever being in any manner entrusted with property or with any domain over property, dishonestly misappropriates or converts it to his own use that property or dishonestly uses or disposes off that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust’.

Illustrations:

(i)         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 appropriates them to his own use. A has committed criminal breach of trust.

(ii)        A, a revenue officer, is entrusted with public money and is either directed by law, or bound by 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. Here A has committed criminal breach of trust.

 

Thus from the above definition and illustrations, we can infer that there are three important ingredients that are necessary to constitute an offence of criminal breach of trust such as:

(a)        A person entrusted with the property has misappropriated it or

(b)        Converted it to his own use or

(c)        That the said person (or some other person at his instance) used it or disposed it off in violation of:

(a)        Any direction of law prescribing the mode in which the trust is to be discharged or

(b)        Any legal contract (express or implied) which he had made touching the discharge of such a trust.

Noted in this context that the element’ Entrusted’ or “entrustment” is an essential element in the offence of criminal breach of trust and arises whenever something in the form of property is given to some person with instructions as to how it should  be dealt with.

The word 'entrustment' has been explained by the Supreme Court in State of Gujarat v Jaswantlal Nathalal (1968). The Court observed that the word entrustment carries with it the implication that the person handing over any property continues to be its owner. Further, the person handing over the property must have confidence in the person taking the property so as to create a kind of fiduciary relationship between them.

What is dishonest misappropriation? To misappropriate means to take a property to oneself as one's own in an unlawful manner, or when a property assigned or set apart for one purpose is unlawfully put to another purpose.

Violation of any direction of law or of a legal contract: The offence under this section is complete not only when there is dishonest misappropriation or conversion of the property entrusted, but also when there is dishonest use or disposal of the property in violation of any direction of law (prescribing the mode in which such trust is to be charged) or of any legal contract express or implied, touching the discharge of such a trust.

Criminal misappropriation and criminal breach of trust distinguished

The property in criminal misappropriation comes into the possession of the offender casually and he misappropriates it. While in criminal breach of trust, the offender is lawfully entrusted with the property and he holds 'it subject to some duty or obligation to apply or use it according to trust, but he dishonestly misappropriates it. 

Cheating:

Sec. 415: Whoever, by deceiving any person:

(a)        fraudulently or dishonestly induces the person so deceived to (i) deliver any property to any person or (ii) to consent that any person shall retain any property, or

(b)        intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes (or is likely to cause) damage or harm to that person in body, mind. reputation or property is said to cheat.'

 

Explanation: A dishonest concealment of facts is a deception within the meaning of this Section.

 

Illustrations:

(i)         A, by falsely pretending to be in the civil service, intentionally deceives Z and then dishonesty induces Z to let him have on credit, goods for which he does not mean to pay. A cheats,

(ii)        A. by putting a counterfeit mark on an article intentionally deceives Z into a belief that the article was made by a certain celebrated manufacturer and thus, dishonestly induces Z to buy and pay for the article. A cheats in this case also.

Criminal Misappropriation and Cheating distinguished:

(I)        Possession of Property: In criminal misappropriation, the original receipt of property is lawful, the dishonest misappropriation or conversion takes place afterwards while 'in cheating, possession is obtained by deceiving a person.

(II)       Intention: In criminal misappropriation, the intent is to dishonestly misappropriate or convert the property to one's own use, while in cheating, intention is fraudulently or dishonestly to induce the person deceived to deliver the property.

(III)     Property: Criminal misappropriation relates to movable property, whereas, any immovable property also can come within the purview of cheating.

(IV) Mode of obtaining property: In criminal misappropriation, property is already in possession of the offender; there is no violation or infringement of possession while, in cheating the property comes into the possession of the offender by fraudulently or dishonestly by inducing a person by deception to deliver such a property.

 

Criminal Trespass: Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such a property or having lawfully entered into or upon such a property, unlawfully remains there with intent thereby, to commit an offence, is said to commit criminal trespass.

Trespass is also a civil wrong: It is the element of 'intention' which distinguishes civil from criminal trespass. If a person enters into or upon another's property unauthorisedly, he commits civil trespass. However- if the entry has been made with `mens rea' or guilty intention, it becomes a criminal trespass otherwise; it is only a civil trespass.

The ingredients of criminal trespass are as follows:

(i)         Entry into or upon property in the possession of another, or unlawfully remaining on such property after a lawful entry.

(ii)        Intention to commit an offence or to intimidate, insult or annoy any person in the possession of such a property.

Entry into or upon property in the possession of another: Trespass can only be committed by an unauthorized entry into or upon immovable corporeal property like houses, land, etc. The property must be in the actual possession of a person other than the trespasser himself.

The offender cannot be held to commit a criminal trespass on property which is in his own possession.

For example, if A enters on B's land to beat him, he commits criminal trespass, but if he beats B on his own land, there is no criminal trespass. Further, to prove criminal trespass, it is the de facto possession of the said property and not de jure possession that becomes necessary. Similarly, for the purposes of this section, possession here means physical possession which includes the right to eject or exclude another person. A landlord who forcibly enters on land in possession of the tenant is guilty of criminal trespass, for it is the tenant who is in possession of the land.

Intention: The essence of the offence of criminal trespass is the intention with which it is committed. It must be proved that the `Mens rea' of the offender was the very intention on the part of the offender to commit an offence or to intimidate or insult or annoy any person in possession of the property. Therefore, mere occupation even if it is illegal, without such intent, cannot amount to criminal trespass. Here in this context,

`Intimidation' means 'to overawe', to put in fear by a show of force or threats or violence'. Intimidation, annoyance or insult must be of such a degree as to affect or disturb the peace of mind of a reasonable man.

So far as the house trespass is concerned, it is to be noted that the introduction of any part of the criminal trespasser's body into the house, is sufficient to constitute house trespass.

                       

CHAPTER 5

OFFENCES RELATING TO MARRIAGE

The most important offences relating to marriage are being detailed below that are being covered under the relevant sections of the Penal code.

1.         Bigamy (Sec. 494 and 495)

2.         Adultery (Sec. 497)

Bigamy (Sec. 494): This section prohibits a second marriage subject to the exceptions stated below of any person during the continuation of an existing marriage and thus, states: '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 a husband or wife, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine."

Exceptions:

1.         This Section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction.

2.         This Section does not extend 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 7 years and shall not have been heard of by such person as being alive within that time, provided the person contracting such 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.  

Thus the three conditions for the operation of the second exception are:

1.         Continual absence of one of the parties for a period of 7 years.

2.         The absent spouse not having been heard of by the other party as being alive within that time.

3.         Disclosure — the party marrying must inform the person with whom he or she marries, the real state of facts.

Noted that the provision of this Section applies to all communities in India except, Muslims. This Section punishes bigamy as an offence and this offence can be committed by men and women equally.

It is clear from the above Section that if the first marriage is not a valid marriage, no offence will be committed by contracting a second marriage. In other words, it means that the second marriage is punishable only if it is void by reason of the subsistence of the first marriage. Moreover, the second marriage should also be in the form recognized by law otherwise, it is no marriage at all, and hence no offence. Admission of second marriage is no proof of marriage. It must be proved by evidence of ceremonies constituting the marriage.

What defences can be taken against bigamy? An accused person can escape the conviction on the charge of bigamy after raising and proving any of the following facts.

1. That the former marriage has been declared void by a court of competent jurisdiction or

2.         That the former husband or wife has been at the time of the subsequent marriage, continually absent from him or from her for 7 years at least and has not been heard of by him or her as being alive within that time, and that this fact, so far as known to himself or herself, has been disclosed to the person with whom the subsequent marriage is being contracted or has been performed.

In a prosecution for bigamy, the second marriage must be proved. A marriage is not proved and not deemed to be proved unless; the essential ceremonies required for the solemnization of a marriage are proved to have actually been performed so far as Hindus, Christians, Sikhs, Buddhists and Jains are concerned. The Hindu Marriage Act 1955 prohibits polygamy on the part of both the husband and wife.

However, the personal matrimonial law of the Muslims permits polygamy on the part of Muslim males only hence, Sec. 494 has no application to them.

Unfortunately, the Muslim women are not allowed the same liberty and hence, the marriage of a Muslim woman with another person during the lifetime of her first husband would attract the penalty under Sec.494.

What effect does converting a religion make on second marriage?

 Difficulties have arisen when married persons have changed their religions and     then married other persons, a second time.  Following rules have evolved from various judicial decisions on this front:    

1.         If the wife is a Hindu, conversion of the husband from one religion to another is not a good defence for the wife to marry another man. Hindu law does not recognize polyandry on the part of a woman. The marriage is not dissolved by the mere fact of the conversion of one or both of the parties to Christianity.

A Hindu woman, who having a Hindu husband living, marries a Muslim, or a Christian even though she has become a Muslim or Christian, is guilty of bigamy. A Hindu marriage is not dissolved by conversion to any other faith. Under Hindu law the apostacy of one of the spouses does not dissolve the marriage.

2.         If the wife is a Muslim and her husband changes the religion, the marriage stand dissolved and the wife will not be guilty of bigamy if she marries again. So here conversion of the husband from one religion to another is a good defence, and a Muslim wife can marry again. In the case of an apostate from Islam, the marriage is dissolved.

3.         If the wife is a Christian, conversion of the husband from one religion to another is - not a good defence to her marrying again.

As according to the Christian conception, "Marriage is a voluntary union for life of one man and woman to the exclusion of others". A Christian woman thus cannot marry a second time during the lifetime of her first husband even if he has embraced another religion. In such a case, her only remedy is to obtain a divorce before the second marriage.

As observed earlier, Mohd. Law permits polygamy and therefore, Sec. 494 does not apply to Muslim males, but Muslim females are not allowed the same liberty and therefore, Sec. 494 very much applies to them. A Christian however, cannot by embracing Islam, marry a second time during the lifetime of his first wife.

Adultery- Sec. 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 rape, is guilty of the offence of adultery.”

Noted carefully that, in any offence of adultery, the woman or the wife is not punished as an abettor owing to her weak position and status in the society.

Noted further that adultery is not an offence under the English law. It is only a tort for which the husband can sue the wrongdoer for damages.

Scope of Sec. 497: The offence is limited to adultery committed with a married woman only and the male offender alone has been made liable to punishment.

 Thus, according to Sec.497 of the code, adultery is an offence committed by a third person against a husband in respect of his wife.

 However, adultery is not committed by a man who has sexual intercourse with an unmarried woman or with a widow or a divorced woman and not even with a married woman, whose husband consents to it. The wife is not punishable as an abettor.

How to establish a charge of adultery against a man?

The following five points need to be proved for establishing the charge:

1.         That the accused had the sexual intercourse with the woman in question,

2.         That she was the lawfully married wife of another man,

3.         That the accused knew or had reason to believe that she was the lawfully married wife of another man,

4.         That the husband of the woman did not consent to or connive at such intercourse and

5.         That the sexual intercourse so had, did not amount to rape.

What defences can be raised against a charge of Adultery?

1.         There was no sexual intercourse.

2.         The accused did not know the woman to be the wife of another.

3.         The husband of the woman consented to or connived at the act of intercourse.

4.         The complainant was neither the husband of the woman nor any other person permitted to prefer such complaint under the criminal procedure code.

Constitutional Validity of Sec.497: Does it amount to the violation of a Fundamental Right that prohibits discrimination on the basis of sex?

This question came up before the Supreme Court, which observed thus: "Therefore what led to this discrimination in this country is not the fact that women had a sex different from that of men, but that women in this country were so situated that special legislation, was required in order to protect them, and it was from this point of view that one finds in Sec. 497, a position in law which takes a sympathetic and charitable view of the weakness of women in this country."

The Supreme Court further remarked that Sec.497 cannot be said to infringe Art.14 of the Constitution on the ground that it makes an irrational classification between man and woman on the basis of following grounds:

1.         That Sec.497 confers upon the husband, the right to sue the adulterer, but it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery.

2.         That Sec.497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.

3.         That Sec.497 does not cover cases where the husband has sexual relations with an unmarried woman.

Difference between 'Adultery' and 'Rape':

1.         Adultery occurs when the woman (with whom a man has had a sexual intercourse) is the wife of some other person. Rape on the other hand, can be committed on any woman, married or unmarried.

2.         Adultery cannot be committed with an unmarried woman, a widow or even with a married woman whose husband consents or connives at it. Rape on the other hand, can be committed on any woman.

3.         In adultery the woman is a willing and consenting party. In rape however, the offence is committed against the will and without the consent of the woman. The offence of rape can be committed even with the consent of the girl, if she is under sixteen years

4.         Adultery cannot be committed with one's own wife, while rape can be committed even with one's own wife if she is below 15 years.

5.         Adultery is an offence relating to marriage, while rape is an offence against the person of a woman.

6.         In adultery, the aggrieved party is the husband, while in rape the aggrieved party is the woman herself.

7.         Adultery is punished with five years imprisonment or with fine or both. Rape being a graver offence, is punishable with imprisonment for life or 10 years or fine or both.

CHAPTER 6

OFFENCES AGAINST THE REPUTATION OF A PERSON

What is DEFAMATION?

Sec. 499 defines defamation as: 'Whoever, by words either spoken or intended to be read, or by signs or by visible representation, makes or publishes any imputation concerning any person intended to harm, or knowing or having reason to believe that such imputation will harm the reputation of such a person, is said, except in the cases hereinafter excepted, to defame that person.'

Explanation 1: It may amount to defamation to impute anything 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: it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4: 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 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

(I)        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 falls within one of the exceptions.

(II)       A is asked who stole B's watch; he points to Z, intending to cause it to be believed that Z stole B's watch. This is defamation, unless it falls within one of the exceptions.

(III)      A draws a picture of Z running away with B's watch; intending it to be believed that Z stole B’s watch, This is defamation, Unless it falls within one of the exceptions.

 

What are the exceptions to defamation?

First exception:

Imputation of truth which public good requires to be made public or published: It does not amount to defamation to impute anything which is otherwise true concerning any person provided the same is being imputed against, but for the public good which requires that the said imputation should be made or published. However, the question whether or not, it is for the public good shall be a question of fact.

Second exception:

Public conduct of public servant: It is no defamation to express in good faith any opinion whatever in respect of the conduct of a public servant in the discharge of his public functions or respecting his character, insofar as his character appears in that conduct but no further.

Third exception:

Conduct of any person touching any public question: It is not defamation to express in good faith any opinion whatever, respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further for example, as explained by the illustration below:

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 at such meeting 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 a substantially true report of the proceedings of a Court of Justice or of the results of any such proceedings.

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

(i)         A says "I think Z's evidence in 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 opinion which he expresses is in respect of Z's character as it appears in Z's conduct as a witness and no further.

(ii)        But if A says "I do not believe what Z asserted at that trial because, I knew him to be a man without veracity"; A is not within this exception; inasmuch as the opinion which he expresses about Z's character, is an opinion not founded in 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 on the above exception:

(i)         A person who publishes a book, submits that book to the judgment of the public. (ii)            A person who makes a speech in public submits that speech to the judgment of        the public.

(iii)       An actor or singer who appears on a public stage submits his acting or singing to the judgment of the public.

(iv)       A says of a book published by Z that '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 inasmuch as the opinion expressed about Z respects Z's character only to the extent it appears in his book, and no further. But if on the other hand, 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 the exception inasmuch as the opinion which he expresses about Z's character, is an opinion not founded on Z's book.

Seventh exception:

Censure passed in good faith by person having lawful authority over another: It is not defamation, if a person having authority over another either, conferred by law or arising out of a lawful contract made with the 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 of the court. Or a head of family censuring in good faith, a child in the presence of other children or a school master whose authority is derived from a parent, censuring in good faith, a pupil in presence of other pupils or for that matter, a banker censuring in good faith the cashier of his bank for the conduct of such a cashier etc. are very much within the ambit of this exception.

Eighth exception:

Accusation preferred in good faith to authorized persons: 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 child to his (Z's) father - A is within this exception.

Ninth exception:

Imputation made in good faith by a 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 has been made in good faith for the protection of the interest of the person making it or of any other person, or for the public good.

Illustrations:

(i)         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 above exception, if he has made this imputation on Z’s character in good faith for the protection of his own interests.

(ii)        A, who is a Magistrate while making a report to 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 above exception too.

Tenth exception:

Caution intended for the good of a 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 is being intended for the good of the person to whom it is conveyed or of some other person in whom that person is interested or for the public good. Having discussed the various exceptions that do not constitute defamation, let’s now have a brief knowledge about the essential ingredients of defamation…

Ingredients of defamation: The three essentials of defamation are:

(1)        Making or publishing any imputation concerning any person

(2)        Such imputation must have been made by any of the following ways:

(a)        Words, spoken or written,

(b)        Signs, or

(c)        Visible representations.

(iii)       Such imputation must have been made either with the intention to harm the reputation of a particular person or knowing or having reason to believe that it will harm the reputation of the person concerning whom the said imputation has been made.

Distinction between English law and Indian law on the offence of defamation: Under English law, the essence of defamation consists in its tendency to provoke breach of the peace. Under the Indian Penal Code however, defamation has been made an offence without any reference to its tendency of causing a breach of the peace.

In other words, the essence of defamation under Indian law is its tendency to cause mental pain, mental agony and suffering to the person defamed, who becomes the object of some unfavorable sentiments and comments of his fellowmen.

Again under English law, spoken words do not constitute a crime whereas, under the IPC, no distinction as such has been made between a slander (oral defamation) and libel (written defamation).

What constitutes the “reputation” of a person?

 Next to life what a man cares most about is undoubtedly his own reputation. Now the question is what do we actually mean about the expression reputation?

In short, what a man thinks about himself is not his reputation. It is rather the opinion of others about him is what that actually constitutes his reputation. The good opinion, one bears on his person in the estimation of others or the esteem in which one is held in the society in which he lives is nothing, but the reflections of one's reputation.

 Reputation is something external to a person and is a great asset one holds in the society.

Logically enough, the reputation of every person is to be preserved. It cannot be said that since a person had no reputation, the question of intending to harm it does not arise. Every person has some reputation, little or great, and if any imputation is being made by anyone to somehow, harm or injure it, the act of defamation is complete. Again, it cannot be said that the reputation of a person is so good, so infallible that no harm can be caused to it.

What amounts to “publication”? ''Defamation is the publication of a so called defamatory statement which tends to lower a person in the estimation of right thinking members of the society. Generally, it is libel, if the statement or defamation is to be made in some permanent form and slander, if it consists or made in some significant words.” That is why, it is generally said that a libel is addressed to the eye and slander to the ear.

But to constitute an offence of defamation, it is always necessary that the defamatory matter should be published, i.e., communicated to some other person (s) other than the One to whom it relates. Just because, a man's opinion of himself is not his reputation and therefore, communication of defamatory matter to the person defamed is no publication of the same at all. However, a person dictating a letter to a clerk does amount to publication.

Moreover, defamatory matter sent through postcard or telegram will amount to publication. Similarly, communication to a husband or wife of a charge by any third person, against the wife or husband, is a publication within the meaning of this section. But communication by a husband to his wife or vice versa, is not publication.

Publication by repetition: The term 'publication' includes repetition or republication of a libel already published. Thus, if a newspaper reproduces a libelous article from another and publishes the same as its own is certainly liable to all the consequences of its publication. However, the fact that the libel is a reprint and the same is proved, it may become a mitigating factor in respect of the sentence or damages so awarded for the offence. At the same time, one will be held liable for circulating defamatory rumours, as one learned judge observed in this regard:

"The Indian Penal Code makes no exception in favour of a second or third publication as compared with the first one and such an exception would obviously be made a means of defeating the principle provision of the law of defamation. A person prosecuted for re-publishing libellous matter cannot be heard to say that another journal had already published the matter and it has not been prosecuted.”

Printed matter: In the eyes of law, the editor, printer, publisher and even the distributor is liable for the printing or publication of any defamatory matter. It is not open to the publisher to contend that he had no knowledge that the paper contained any defamatory article.

Imputation concerning any person: Imputation means a sort of accusation or something more than an expression of a suspicion. Hence, suspicion is not an imputation. The words complained of as being defamatory must contain an imputation concerning a particular person or persons whose identity can be established.

No doubt, defamation being both a civil and criminal wrong, the principle of the civil law of defamation however is that the intention of the defendant is immaterial. But the same is not applicable to the law of defamation as contained in the IPC.

 As according to a learned author on the law of crimes, “a random shot not directed against any particular man or class of men is outside the scope of the offence of defamation under IPC." Then again there are the words ‘intending to harm' in Sec. 499 which makes intention as the gist of the offence, whereas under civil law intention is immaterial.

Means of Publication: The imputation may be made by (1) words spoken, or (2) written, (3) or by visible representations. Indian law does not recognize the distinction between libel and slander, i.e., between written and spoken defamation. In fact, the words, 'visible representations' include every possible form of defamation that the human mind can 'devise'. For example, a statue, a caricature, an effigy, chalk marks on a wall, signs or pictures may constitute defamation.

Intention to injure: By Sec.499, the person who defames another must have done it "intending to harm or knowing or having reason to believe that such imputation will harm the reputation". Besides intention, knowledge of the accused that harm to the reputation will be caused by the imputation so made by him, is also sufficient for the purposes of this section. Likewise, if the accused has even the reason to believe that reputation will be harmed, it is also sufficient. The section contains all the words viz., intention, knowledge and reason to believe and either of them is to be proved in order to constitute the offence of defamation.

Words of common abuse like, 'you fool', 'you idiot' and 'you scoundrel', and others which convey no definite imputation are not harmful to one's reputation and thus, do not constitute defamation.

It is also to be noted that in cases of defamation, the court has to decide as a question of law, whether the imputation is capable of being understood in a defamatory sense or not. Only when this question is in the affirmative, the court will then proceed to determine if the defamatory matter had in fact harmed the reputation of the plaintiff.

Defamation by Innuendo: Sometimes, a particular statement is prima facie innocent and looks non-defamatory; but on account of determining its hidden meaning, it certainly makes the statement defamatory in nature. This hidden or latent meaning is called as ‘Innuendo'. It is then for the prosecution to establish that the words though apparently non-defamatory are in reality libellous on account of innuendo involved in it.

Ten exceptions to the above described defamation explained:

The ten exceptions to Sec. 499 as described above actually refer to the cases in which an imputation being prima facie very much defamatory in nature, but can be excused if they have been made under the following considerations:

1.         Imputation of truth for public good

2.         Public conduct of public servants

3.         Public conduct of public men other than public servants

4.         Comment on cases and conduct of witnesses and others concerned

5.         Merits of cases, decisions and judicial proceedings

6.         Merits of public performances, literary criticisms, etc.

7.         Censure in good faith by one in authority of doing so

8.         Complaint to an authority

9.         Imputation for protection of interest

10.       Caution in good faith

In short, exception 1 corresponds to the plea of justification being a bare statement of truth for public.

Exceptions 2, 3, 5 and 6 correspond to the plea of fair comment on a matter of public interest.

Exception 4 covers the plea of a fair report of judicial proceedings.

Exceptions 7 and 8 cover the case of censure by a lawful authority passed in good faith and accusation made to a lawful authority in good faith.

Exceptions 9 and 10 cover the case of imputation made in good faith by a person for protection of his interest for the public good and the case of caution intended for the good of the person to whom it is conveyed or for public good.

First exception explained:

Truth for public good: "It is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation is made or published. Whether or not it is for the public good is a question of fact".

There are two requirements, the first is that the imputation must be true and it is made or published for the public good.

Second exception explained:

Fair criticism of public servants: "It is not defamation to express in 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. The Supreme Court observed in this regard:

 “that those who fill a public position must not be too thin- skinned in reference to comment made upon them. Whoever fills a public position renders himself open thereto; he must accept an attack as a necessary though, an unpleasant appendage to his office".

The first exception deals with allegation of facts while the second exception deals with expression of opinion. Men in public positions even though official, can claim no immunity from fair criticism. This is the essential feature of law in all democratic countries. The position is the same with the press, authors and publishers of books. The opinion expressed must be in good faith. Under the IPC "Nothing is said to be done or believed in good faith which is done or believed without due care and attention".

The opinion expressed must be fair and honest. No opinion can be considered as fair unless it contained a `core 'of truth. The facts on the basis of which the comment or opinion is made must be true. An opinion or comment based on untrue or invented facts is not 'fair comment'.

Third exception explained:

Fair comment on public conduct of public men other than public servants: Regarding the third exception, the authors of the code have observed:

"There are public men who are not public functionaries, persons who had no office may yet take very active part in urging or opposing the adoption of measures in which the community is deeply interested. It is clear therefore, that every person ought to be allowed to comment in good faith on the proceedings of these volunteer servants of the public; with the same freedom with which he is allowed to comment on the proceedings of the official servants of the public".

In order to succeed on a plea of fair criticism, the accused should prove that his expression of opinion was fair and honest and the alleged fact on which the opinion was based was true.

Rights of the Press:

The principles relating to alleged rights, privileges, duties and responsibilities of newspapers in respect of the publication of news items as also cases relating to the doctrine of fair comment may be summarized as under:

(i)         That no kind of privilege attaches to the profession of the press as distinguished from the members of the public.

(ii)        Even so, in the context of a welfare state, the role of a newspaper editor as a people's agent voicing public feelings, analyzing public operations and ventilating public grievances cannot be ignored and it will be proper to bear this in mind in judging factually the liability of the newspaper editor.

 (iii)      The defence of fair comment is applicable only to expression of opinion or imputations on character and not to assertion of facts.

(iv)       If the opinion or imputations on character are integrally connected with facts, the person pleading this exception must prove those facts. "Fair comment cannot justify a statement which is untrue in fact".

Fourth exception explained:

Report of proceedings of Court of Justice: It is not defamation to publish a substantially true report of a Court of Justice or the result of any such proceedings. It follows that the report must fairly represent to the reader what he would have learnt if he had been present. The report of the evidence on one side but not on the other side, the examination of a witness but not the cross-examination, would not be a fair report and therefore would not be privileged. The report of the proceedings must be kept distinct from the comments. A sensational headline to the report is comment and if it is not strictly justifiable, it may constitute a libel. In exception 4, nothing is mentioned of 'good faith’; all that is required is that the report should be substantially true.

Reports of Parliamentary Proceedings: Reports of Parliamentary Proceedings published by or under the authority of either House of Parliament or State legislature are the subjects of absolute privilege. If however, the proceedings are published without the authority of the House, qualified privilege can be claimed provided the publication is made without malice and for public good. For example,

Sec. 3(1) of the Parliamentary Proceedings (Protection of Publication) Act 1977, states as under:

"No person shall be liable to any proceedings civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament unless, the publication is proved to have been made with malice". The above stated protection however, is again not available unless, the publication has been made for public good.

Fifth exception explained:

Comment on cases: This exception protects bonafide comment on cases which have been decided by the courts and does not extend to cases which are still sub-judice. Everyone has the right to discuss fairly the administration of justice.

As observed by the Supreme Court:

"But the comment must be confined to the merits of the case including the conduct of the parties, their agent and witnesses. Since the expression of such opinion must be made in good faith, it follows that it must be fair and honest based purely upon reason and/or discussion and not merely declamation and invective, written not with a view to advance public good, but solely to bring into contempt and hatred the administration of justice or injure the character of individuals. So it is no fair comment to say that the prisoner was acquitted though, he was really guilty, though of course, it would be fair to give reasons showing on what points, the judge had erred and why there had been a failure of justice. So again, the critic may lament the state of the law, the administration of which leads to such startling results, but he cannot direct his shafts personally against the judge calling him a knave or a fool or implying as such though, it is quite different to say that the judges had misunderstood or misapplied the law or omitted to consider or apply it correctly. Such criticisms are made daily in the public press and though, they have a remote tendency to bring the administration of justice into contempt they are thus not defamatory, because they are equally protected by this exception and exception 2."

Sixth exception explained:

The object of the sixth exception is that the public should have the benefit of free criticism of all public performances that are deemed to have been submitted to its judgment. The essential ingredients of this exception are:

1.         The author must have expressly or impliedly invited criticism which he may do by the mere act of publication.

2.         The criticism must relate to the merits of the performance and

3.         Must be made in good faith.

The term 'author' in this context, includes a designer of public buildings, an inventor, painter, architect, actor, an editor and the like.

Seventh exception explained:

Censure by one in authority: The two primary ingredients of this exception are:

 (i)        That the censure must be on the conduct of the person within the scope of the critic's authority and

(ii)        That the censure must be passed in good faith.

This exception permits a person under whose authority others have been placed, either by law or by their own consent to censure in good faith such persons in respect of such matters to which that authority relates. However, it is to be noted that excess of publication destroys this privilege.

Eighth exception explained:

Complaint to Authority: As observed by the authors of the Code:

"We allow a person to prefer an accusation against another in good faith to any person who has lawful authority to restrain or punish the accused". Thus, the two conditions to be satisfied for attracting the protection of this exception are:

(i)         The accusation must be made to a person in authority over the party accused.

(ii)        The accusation must be made in good faith.

Persons in authority herein this context, include the President, Ministers, Members of Parliament, other officials of the State Civil service , Magistrates, Judges and the Police. Besides, a person in domestic circle such as a husband, a guardian or a father would also fall within the purview of persons in authority. The complaint must however be made to the lawful authority. However, it has been held that even if there has been some mistake in the presentation of the complaint to the proper authority that could not deprive the complainant of the privilege afforded by this exception.

Thus if a complaint about a postal peon is made to a Medical doctor, the complaint is obviously beyond the exception. However, where the inhabitants of a district in which the plaintiff was a teacher, sent a petition accusing him of moral turpitude to the local superintendent of schools instead of the trustees of that particular school, the petition is privileged, as the ultimate decision lay with the superintendent of the schools.

Ninth exception explained:

Imputation for Protection of Interests: It is not defamation to make an imputation on the character of another provided that the imputation is made on the following grounds:

(a)        In good faith,

(b)        For the protection of interest:

(i)         of the person making it or

(ii)        of any other person, or

(c)        For the public good.

In one sense, exception 9 states a general principle of which exceptions 7, 8 and 10 are particular instances. Thus, the exceptions 7-10 fall under the heading communications made on privileged occasions.

The ninth exception matches to some extent to the first exception explained earlier. Under this exception, the accused need not prove that every word he has spoken or written about, is literally true.

Privileges of judges, Counsels, Witnesses and Parties:

A Judge cannot be prosecuted for defamation for words used by him while trying a case in Court even though the words used are alleged to be false, malicious without reasonable cause. In other words, judges enjoy absolute privilege. As regards the privilege of counsels, witness etc., the position is as under:

A study of various decisions reveal that the majority of High Court in India have had held that the Advocates here enjoy only qualified privilege in terms of the provisions of Sec. 499 IPC.

As regards witnesses, all the High Courts have held that a person giving evidence in a Court of Law is not entitled to an absolute privilege in respect of the statement.

As regards the rights of the parties, they too do not enjoy absolute privilege. If the statements of the party are relevant to the issues in the case, the party could be protected. As regards pleadings filed before the Court, there is no absolute privilege.

Tenth exception explained:

Caution in Good Faith: This exception states that it is not defamation to convey in good faith, a caution to one person against another provided that such caution be intended for the good of –

 (i)        The person to whom it is conveyed, or

 (ii)       Of some other person in whom that person is interested or

 (iii)      For the public good.

           

This exception covers cases of imputation in the discharge of a social duty.

 Instances of communications which fall within the ambit of this exception are:

 Where a father, guardian, or an intimate friend may warn a young man against associating with a particular individual or a lady against marrying an objectionable suitor.

……The End….